1. ' SARDAR ABDUL HAMEED KHAN, J.---This writ petition has been filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby the petitioner has prayed for setting aside the impugned judgment of Board of Revenue (respondent No,. 4) dated 17-10-2008, impugned judgment of the Commissioner Division Mirpur (respondent No, 5) dated 9-6-2008, order passed by District Collector Kotli dated 6-2-2008 and impugned order passed by the Assistant Collector District Kotli (respondent N6. 7) dated 31-12-2007, whereby the ejectment order passed by the Assistant Collector (respondent No,7) pertaining to Shamilat Deh land bearing Survey No, 79 measuring 30 kanals situated in village Bihal Tehsil and District Kotli.
2. ' The petition was admitted by the Court vide order dated 23-5-2011 on the basis of judgment of the apex Court reported as 2001 CLC 920. The petitioner has claimed that he is old land owner in village Bihal. It is further claimed that the land in dispute is in exclusive possession of the petitioner, hence, sought the quashment of the impugned orders passed by the Revenue Functionaries as being passed Without lawful authority. The respondents filed written statement in which it is stated that the petitioner has no locus standi as the he is not owner of the land in village Bihal. It has further averred that the petitioner has fraudulently got the same land by showing him legal heirs of Muhammad Yaqoob, who was the father of non-petitioner No, 1 hence, he 4 not entitled to any Shamilat Deb land. It is added that the petitioner has neither any locus standi nor can be termed as aggrieved person. It is further contended in the written statement that impugned judgments/ orders are passed by the tribunal of exclusive jurisdiction which cannot be questioned by way of writ petition. It was further contended that mutation No, 13 on the basis of which the petitioner has claimed as being owner in the village Bihal has been cancelled by the official respondents and prayed for dismissal of writ petition.
3. ' Arguments heard.
4. ' Raja Muhammad Sagheer Khan, Advocate, reiterated the grounds of writ petition and contended that the respondent No, 1 in connivance with respondent No, 7 of the time got the order dated 31-12- 2007 in his favour, which cannot be termed as judicial order or even an order passed by the Revenue Officer, wherein, it has been opined by the respondent No, 7 Extra Assistant Commissioner of the time in District Kotli, "it has become custom/fashion that the people are trying to avoid the ejectment proceedings by giving the reference of decision of the Supreme Court".
5. ' The learned counsel attacked the impugned orders and contended that, all these orders have been passed without lawful authority which arc directly in contradiction of provisions of the AJ&K Shamilat Deh Act, 1966 and the official respondents just to accommodate the respondent No, 1 for some unknown reasons or under the political pressure has passed these orders and deprived the petitioner from his vested rights of Shamilat Deh, hence, violated the provisions of constitution relating to the rights to property of the petitioner. The learned counsel referred 2001 CLC 920 and contended that the petitioner is an old land owner. The learned counsel drew the attention of the Court to Annexure A, copy of Misl-e-haqiat pertaining to year 1970-1971 and copy of Khasragardavri for the year 1981 to 2008 and maintained that the petitioner is one of the land owners as being one of the heirs of the Ameer Muhammad in Khewat No, 86 village Bihal and is in exclusive possession of the Shamilat Deh land measuring 30 kanals, survey No, 79 min of village. Bihal and prayed for acceptance of the writ petition.
6. ' While controverting the arguments advanced on behalf of the petitioner, Messrs Rafiullah Sultani, Advocate, Liaqat Hussain Mughal, Advocate and learned A.A.-G. Repudiated the arguments and contended that the petitioner stepped in the shoes of Muhammad Yaqoob the father of the respondent No, 1 by claiming the heir of the deceased and got the Mutation No, 13 attested by the Revenue Authority in 1951. It is further argued that Mutation No, 13 has come to an end therefore, the petitioner cannot be termed as land owner in the light of the impugned judgments It was further contended by the learned counsel for the respondents that impugned orders passed by the respondents are in accordance with law. It was further contended that the matter pertains to competence of a Tribunal of exclusive jurisdiction then the writ jurisdiction cannot be exercised. The learned counsel vehemently contended that the petitioner was in possession of land illegally, which has rightly been ejected by the competent authority, hence, a writ to protect the ill gotten gain cannot be entertained. The petitioner has not come to the Court with clean hands, thus the petition of the petitioner is liable to be dismissed with heavy costs. The learned counsel referred the following case-law; 2004 YLR 2260, 2000 SCM R 238, 1996 SCR 161, 2013 YLR 169, PLD 1992 SC (AJK) 491, PLD 1984 AJK 15, 1996 M LD 355, 2013 SCR 548 and 2000 YLR 1051.
7. ' I have heard the learned counsel for the parties and gone through the record of the case with my utmost care.
8. ' The matter pertains to possession of Shamilat land, and a glance perusal of the provisions of Shamilat Act, 1966 and the impugned orders passed by the respondents, it can safely be concluded that the impugned orders cannot be termed as judicial orders; rather these are clearly in contradiction of Shamilat Deh, Act, 1966. It will not be out of place to mention that in the order passed by the respondent No, 7, it is noted that the petitioner is in possession of the disputed land, and further mentioned in the impugned order that the petitioner cannot be saved from ejectment by referring the judgment of the Supreme Court. The Revenue Officer (respondent No, 7) also mentioned in his order "that in District Kotli it has become a tradition/custom to escape ejectment proceedings by referring the judgment of the Supreme Court". This sentence is surprising and inefficiency of the respondent No, 7 is crystal clear. In the same way other impugned orders passed by the authorities while dismissing the appeal of the appellant held that the appellant (petitioner herein) is the owner of the land measuring 14 kanal 15 marlas whereas, he is in possession of Shamilat Deh land measuring 30 kanals and referred a standing order of the Board of Revenue dated 10-4-2007 instead of abiding by law laid down by the apex Court referred in the impugned order. The respondent No, 5 while passing the impugned order dated 9-6-2008 referred section 14 of Shamilat Deh Act, 1966. Whereas, Shamilat Deh Act, 1966 is consisting of only 9 Sections, where from, the functioning of the official respondents is obvious which is against the spirit of law.
9. It is pertinent to mention that only 1 mutation is attested of Shamilat Deh land in a village as provided under section 5(1) which is subject to partition/distribution as provided in subsection (3).
10. In this view of the matter, it leaves no room to conclude that the petitioner is share holder of Shamilat Deh land and till the partition/distribution he cannot be ejected from the land in his exclusive possession.
11. ' As far as the civil case regarding the inheritance and cancellation of mutation of inheritance of Muhammad Yaqoob is concerned. These matters are sub judice before the Civil Court as stated at bar by both the learned counsel for the parties hence, it need not to discuss.
12. ' The record placed on the file by the petitioner has not been rebutted by the other side by any copy of Revenue record including record of rights or any periodical record. The case-law referred by the respondents need not to be discussed as it is distinguishable and have no application to the present case. The case-law referred by the learned counsel for the petitioner is the judgment of the apex Court which still holds field. The relevant portion of the case titled "Fojdar Khan and others v. Azad Govt. And others" reported as 2001 CLC 920, is reproduced as under:-
(a) Azad Jammu and Kashmir Land Revenue Act, 1967-- ----5.175-A---Azad Jammu and Kashmir Grant of Khalsa Waste Land as Shamilat Deli Act, 1966, S.5(3)(9)---Ejectment from "Shamilat Deh" Land---Land in dispute in possession of appellants as co-sharers was "Shamilat Deh"---Co-sharers who were in possession of the land in excess of their fractional share, could not be ejected without the partition of the same by metes and bounds especially when the land, was not reserved for common purpose of villagers.
13. ' There is no evidence either to the effect that "Shamilat Deh" land which is in possession of the appellants was reserved for common purpose of villagers as stipulated under subsection (3) of section 5 of the said Act".
14. In the light of what has been stated above, by accepting the instant writ petition, the impugned orders of the respondents Nos. 4 to 7 dated 17-10-2008, 9-6-2008, 6-2-2008 and 31-12-2007 are hereby, set-aside. These orders of the ejectment passed by the Revenue authorities pertaining to land Survey No, 79 min measuring 30 kanals situated in village Bihal Tehsil and District Kotli against the petitioner are without lawful authority and are of no legal effect. No order as to costs.