INHABITANTS OF VILLAGE NAROL Versus AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary
MUHAMMAD SHERAZ KAYANI, J.--- Through the above titled writ petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the petitioner has implored the following relief:--
"It is, therefore, prayed that:-- i). The respondents may kindly be prohibited from cancelling the order of the Commissioner and Settlement Officer dated 24.03.2001 and 26.03.2001. ii). The respondent may be prohibited from interfering in the peaceful possession and enjoyment of the land of the petitioner. The respondent may also be prohibited from cancelling or revoking the Notification dated 14.10.2000. iii). A further direction may kindly be issued to the respondents that Notification dated 26.10.2001 has been issued without lawful authority and the respondents may be prohibited from proceeding further in the light of the aforesaid Notification. The Notification dated 14.11.2001 may kindly also be set aside as being without lawful authority, illegal and capricious. Any other relief admissible under law may also be granted."
2. Precise facts, culminating into the filing of the instant writ petition, according to the petitioners are that the petitioners are residents of village Narol and in that capacity, are also the owners of the Shamilat-e-deh land as Hasb-e-Rasad Khewat and have the rights to enjoy its fruits and crops as share holders. It has been contended that in the khewat No.47, out of 184 kanal 17 marlas, land measuring 106 kanal 2 marlas was converted from Mehfooz Kahcharai to Shamilat-e-deh land vide order dated 26.03.2001. It has been further stated that out of the said land, 11 kanals land was acquired by the Government and some of the petitioners have also received compensation of their occupied land. It has been submitted that the petitioners moved an application to the Prime Minister, which was allowed and the Notification dated 16.01.1997 stood cancelled vide Notification dated 14.10.2000 but even then, vide order dated 26.10.2001 a committee has been constituted for inquiry. It has been claimed that the Notification dated 14.10.2000 has not been challenged by the respondents at any competent forum and in pursuance of the said Notification mutation No.61 has been attested, therefore, the inquiry committee ordered by the respondents is without lawful authority.
3. The respondents were summoned for filing written statement and the needful has been done by respondents. In the written statement filed on behalf of respondent No.6, besides refuting the claims of the petitioners it has been stated that the land in dispute has been transferred in the name of MDA vide Notification dated 17.09.1989 and the inhabitants got cancelled the said Notification, with fraud and forgery, secretly. It has been alleged that the petitioners have obtained the Notification by completing the proceedings with the connivance of the officials of the revenue department. It has been contended that presence of Notification dated 26.03.2001 the very purpose of the establishment of MDA comes to an end, therefore, the same has been cancelled by the Government.
4. Ch. Amjad Ali, Advocate, the learned counsel for the petitioners reiterated the facts and grounds agitated in the petition and contended that judgments of the Commissioner, Settlement dated 24.02.2001 and 26.03.2001, being judicial orders have not been challenged before the proper forum, well in time, as under Section 161 of the Land Revenue Act, 1967, the order passed by the Commissioner are appealable before the Board of Revenue, within 90 days, hence, the same have attained finality. The learned counsel maintained that out of the suit land, a piece of land measuring 11 kanals was acquired by the Allam Iqbal Open University, compensation whereof, has also been received by the petitioners. The learned counsel pressed into service the point that the Development Authority, under No.MDA/173 -78 dated 28.01.2011 moved the Deputy Commissioner/Collector, Muzaffarabad for award of land from Zero Point to Mera Tanolian -II comprising survey Nos. 279 and 380, and the award was issued, wherein, the suit land has been mentioned as 'Shamilat-e-deh'. The learned counsel maintained that the writ petition merits acceptance on the ground that the orders of the Commissioner Settlement dated 24.02.2001 and 26.03.2001, being unchallenged at any proper forum, have attained finality. The learned counsel submitted that the petitioners cannot be deprived of from their lawful rights in the garb of illegal Notifications, issued by the Government as it has been admitted in the report of the Additional Commissioner, Muzaffarabad dated 29.10.2002 that the suit land is not in the ownership of the Forests Department. The learned counsel stressed the point that the land in dispute is 'Shamilat-e-deh' land which is joint property of the inhabitants and no Government or state functionary is empowered to convert the status of the land and any such conversion shall be deemed as contrary to the constitution. In support of his submissions, the learned counsel placed reliance on the following precedent cases:--
1. PLD 1963 SC 322,
2. PLD 1963 Lah 575
3. PLD 1984 SC(AJ&K)77,
4. PLP 19 85 SC(AJ&K)56,
5. PLD 1985 SC(AJ&K) 6.
5. The learned counsel next contended that any piece of land, even owned by the Government cannot be transferred in favor of any authority or institution or individual except through an award and no charity has been provided in this regard. On this point, the learned counsel also referred the following case law:--
1. PLD 1987 SC 344,
While concluding his arguments the learned counsel claimed that the Government Notifications cannot override the substantive law and cannot be used to deprive the petitioners from their constitutionally granted rights and the learned counsel referred to and relied upon the following case law, in support of his assertions:--
2. 2004 SCR 435
3. 2014 SCR 921
4. 2005 SCR 109
6. Refuting the claim of the petitioners, the learned legal advisor of the MDA, in written arguments, has controverted the stance of the petitioners and contended that land comprising survey No.101 measuring 80 kanals, which is 'Mehfooz Kahcharai' vide Notification dated 17.09.1989 and 16.01.1997, was transferred in favor of the Development Authority. It has been argued in the written arguments, that upon the application of the village, vide order dated 24.03.2001, the Commissioner accorded approval of the conversion/change of the status of the land from "Mehfooz Kahcharai to Shamilat-e-deh' and against the said order, the Development Authority agitated the matter before the Government, whereupon vide Notification dated 14.11.2001, a six members committee, including the SMBR, was constituted. The learned counsel contended that the orders of the Commissioner Settlement dated 24.02.2001 and 26.03.2001 do not have any value as the land in question is `Mehfooz Kahcharai' and has been alienated by the Government through Notification dated 17.09.1989, therefore, the revenue authorities were not competent to convert the status of land from 'Mehfooz Kahcharai to Shamitat-e-deh'. The learned counsel has raised a preliminary objection upon the petition that the same has been filed on behalf of (6) persons and not on behalf of the inhabitants of the village, whereas, earlier the petitioners filed a petition in 1999 which was dismissed by this Court vide order dated 30.05.2000. The learned counsel finally craved for dismissal of the petition with costs on the ground that filing of the instant petition is an interference in the smooth working of a welfare state functionary.
7. The learned AAG also supported and owned the arguments raised on behalf of the learned legal advisor and contended that no illegality has been committed by the Azad Government while transferring the land in question in favor of the development authority as the land was Mehfooz Kahcharai and mere an order passed by the Commissioner, settlement is no sufficient for change/conversion of the status of the land in question.
8. I have heard the arguments on behalf of the petitioners, perused the written arguments filed on behalf of the AAG as well as the Legal Advisor and considered the controversy with utmost care.
9. It is an admitted fact that the orders of the Settlement Commissioner dated 24.02.2001 and 26.03.2001 have not been challenged before the proper forum, within the prescribed period of limitation, by the respondents. In order to conclude the controversy, relevant provision of Land Revenue Act, 1967 is reproduced, hereunder:--
"161. Appeals . (1) save as otherwise provided by this Act, an appeal shall lie from an original or appellate order of Revenue Officer as follows, namely;
(a) To the collector, when the order is made by an Assistant Collector, of either grade.
(b) To the Commissioner, when the order is made by a Collector,
(c) To the Board of Revenue only on a point of law, when the order is made by a Commissioner;
10. The very next section; Section 162 provides limitation for appeal for either subscription, which is also reproduced, hereunder, usefully:--
"162. Limitation for appeals. Save as otherwise provided by this Act, the period of limitation for an appeal under section 161 shall run from the date of order appealed against and shall be :-
(a) Thirty days, where the appeal lies to the Collector,
(b) Sixty days, where the appeal lies to the Commissioner,
(c) Ninety days, where the appeal lies to the Board of Revenue.
11. It deems just and proper to probe out, as to what were the orders dated 24.03.2001 and 26.03.2001, whereupon, the heavy superstructure has been built by the petitioners. For convenience, the impugned orders and contextual correspondence is reproduced, hereunder. Under letter dated 22.02.2001, the Settlement Officer, made, certain recommendations to the commissioner Settlement. The concluding part of the letter reads as follows:--
12. In response to the above letter of the Settlement Officer, the Commissioner, Settlement vide order dated 24.03.2001 granted approval of the review as under:--
13. With the above approval, the matter was referred to the Settlement Officer and vide letter dated 26.03.2001, the Settlement Officer, directed the Tehsildar Settlement to act upon the approval of the Commissioner in the following words:--
14. In light of the approval granted by the Commissioner Settlement, the Settlement Officer granted approval of correction and referred the matter to the concerned Tehsildar and resultantly, correction was effected in the revenue record by the Assistant Collector/Tehsildar vide order dated 03.04.2001 and mutation No.61 was also attested as such.
15. A contemplate perusal of the relevant section of the Land Revenue Act, and the excerpts reproduced above, leads this Court that against the above reproduced orders of the revenue officers, the respondents were provided remedy of appeal before the Board of Revenue within 90 days but they did not bother to do the needful, hence, under the Land Revenue Act, the above orders had attained finality after expiry of the prescribed period of limitation.
16. It is universally celebrated principle of law that the findings of any Court/forum of competent jurisdiction, if not challenged within the prescribed period of limitation and after attaining finality, cannot be nullified by exercising administrative powers, as has been done in the instant case. This view of the Court finds support from cases reported as PLD 1969 SC 430, PLD 1992 SC 184 and PLD 2004 Lah. 815. Although, in the said authorities, judgments of the superior Courts were referred but the main principle remains that if a tribunal or court having jurisdiction, decides a matter that cannot be reversed through executive orders. In the case titled 'Ghulam Rasool and another v. Said Ahmed and others' 2012 CLC 1655 wherein, at page 374, para. 9 of the report, it has been held as under:--
"9.The basic constitutional provision, dealing with the transfer of land by the Government, is section 52(A) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Subsection of this section provides that 'transfer of land by the Government or the Council shall be regulated by law'. This is mandatory under the provisions of the Constitution that for transfer of land, there must be some procedural law. It is not a sweet discretion of the Government or other public authorities to distribute the State property as charity."
(Underlining is mine)
17. The respondents have attempted to get resolved the controversy, by exercising administrative powers of the Government but the fact remains that if the land in dispute, as per the record and decision of the concerned revenue officers, is 'Shamilat-e-deh' land, the same is the property of the inhabitants of the villager proportionate of their ownership and how they can be deprived of, from their lawful right. Under section 4(14) of the Constitution, no one can be deprived of his property without adopting due process of law and providing compensation. The relevant provision reads as under:-
"4.(14). Protection of Property: (1) No person shall be deprived of his property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on which and the manner in which the compensation is to be determined and given."
18. In the instant case, the Notification dated 16.01.1997 is the main organ, whereby, the word 'Narol' was included and the words 'Mera Tanolian and Sangri Mera' were omitted. Vide Notification dated 14.10.2001, the above Notification dated 16.01.1997 was cancelled from its date of issuance. Meanwhile, the correction was effected in the revenue record, with the approval of the competent authority vide orders dated 24.03.2001 and 26.03.2001 and the said orders were not challenged, as provided in the relevant provision of law. In light of the above orders, the Notification dated 16.01.1997 stood nullified. The law is well settled that when the basic order is void, all the superstructure, built on it would be deemed to be void. The proposition came under the consideration of the apex court of Azad Jammu and Kashmir in case titled, Muhammad Akram and another v. Custodian Evacuee Property and 7 others, [2003 SCR 442]. Relevant observation lies at page 45 of the report which reads as follows:--
"In view of these facts, the learned Custodian was justified in law to cancel the allotment order obtained by him. In our view, the proprietary rights obtained on the basis of defective allotment order and sale-deed executed by appellant No.1 in favor of appellant No.2, on the basis of his proprietary rights Transfer order, was rightly cancelled by the Custodian because it is a celebrated principle of law that if basic order is void then all superstructure built upon such order is also liable to be set aside along with the basic order."
19. So far as the question of transfer of the Shamilat-e-deh land in favour of an institution or individual is concerned, a Shamilat-e-Deh land, in-fact is in the ownership of the proprietors of the village; the Government has no right of ownership or even possession in the said entity. When, it has no right, then, it has also no authority to transfer it to another person. If we look from another angle, by accepting the fact that the land in question was 'Mehfooz Kahcharai', even then, that could not be transferred by the Government to MDA/respondent No.6. Mehfooz Kahcharai means the common land reserved for the grazing of the cattle of the villagers. In the ownership column No.4 of the Jamabandi, its entity remains as 'Shamilat-e-deh land'. So irrespective of the fact whether, it was reserved for grazing purpose or not, the character and title of the land remains same, (Shamilat-e-deh land). Mehfooz Kahcharai does not connote that the land was transferred or vested to Government. Any person or institution living outside the limits of village "Narol" cannot claim any title, whatsoever, upon the Shamilat- e-deh land, no matter it is used for which purpose. The proposition has been resolved by the apex Court of Azad Jammu Kashmir, in case titled 'Ghulam Rasool and another v. Said Ahmed and others' 2012 CLC 1655, wherein, at page 1659 of the report, it has been observed as under:--
"6. .. The Shamilat-e-deh, land, according to law, is a common land of the villagers and the Government or any other state authority is not empowered to transfer this land. Suchlike transfer is violative to the constitutionally guaranteed right fundamental rights of property. Therefore, the learned High Court has rightly set at naught the Notification of transfer of land."
20. The present controversy, when adjudged in light of above dictum of the apex Court, this Court comes to the conclusion that the impugned Notifications have been issued without lawful authority and have no legal effect, hence, ineffective and inoperative upon the rights of the petitioners as well as the other proprietors of the village/co-sharers in the disputed land as well.
21. The nub of the above discussion is that the instant writ petition is accepted. The Notifications dated 26.10.2001, and 14.11.2001 , being without lawful authority, are hereby set aside. Resultantly, all proceedings conducted in furtherance of the above Notifications stand quashed.
ZC/24/HC(AJ&K) Petition dismissed.