' SARDAR ABDUL HAMEED KHAN, J.---This is a writ petition filed under Section 44, of the Azad Jammu and Kashmir Interim Constitution Act, 1974, wherein, the petitioner has challenged the order passed by respondent No, 5 and a prayer for restoration of the order passed by Deputy Commissioner/Collector District Poonch dated '27-12-1997. The petitioner was allotted a piece of khalsa land out of Khasra No, 739 measuring 4 Kanals and Khasra No, 900 measuring 5 Kanal 12 Marlas total measuring 9 Kanals 12 Marlas situated in village Dhammni Gharbi out of Khalsa land.
The petitioner has prayed az under.
2. The writ petition has been admitted for regular hearing vide order dated 27-6-2009 in the following terms:- "Be that as it may the fact remains that the point of limitation and the legality of allotment order in view of nature of the land in dispute are required to be examined in detail, therefore, this petition is admitted for regular hearing.
' Comments filed by Khadim Hussain, respondent No, 2 was treated as written statement on the request of the respondents vide order dated 14-11-2009. However Wakalatnama was filed by S. Sardar Khan Advocate, on behalf of the respondents Nos. 2 and 4 Khadam Hussain and Muhammad Ayyub, however, comments were filed on behalf of the respondent No, 2 only. It is further noticed that no comments/ written statement has been filed on behalf of other respondent.
The replication was filed by the petitioner on 16-4-2010.
3. Arguments were heard. Petitioner in person Mr. Yar Ali Khan argued in detailed with the background of its case and submitted that he is a refugee settled in village Dhamni and submitted that a piece of above noted khalsa land measuring 9 kanals and 12 marlas adjacent to his allotted evacuee land was in his possession who affected the improvements on the land, as nautor and converted into field, farms, planted trees, spent huge money and learned Deputy Commissioner Rawalakot Poonch sanctioned the land in favour of the petitioner and mutation to this effect was also attested. The petitioner contended and referred some Revenue Record in shape of Khasra Gardawri etc. He contended that Khasra Gardawri pertaining to year 1996. The possession is established in Rabbi 1997, 4 Kanals out of No,Khasra 739 and 5 Kanal 12 Marlas land out of Khasra No, 900 situated in village Dhammni is recorded in his favour. The petitioner vehemently argued that the private respondents challenged the order of the learned Collector District Rawalakot before the Commissioner, who dismissed the appeal of the respondents on the point of limitation very rightly. However, the respondent No, 5 (Board of Revenue) on a revision filed by the said respondent reversed the order of the Additional Commissioner and cancelled the allotment order of the said land and mutation. Sanctioned in the name of petitioner as being against the law and the revision before the board of Revenue and review petition also met the same fate.
4. The petitioner contended that he is a Junior School teacher and his land was acquired by the Government for certain public projects and the allotment of the Khalsa land in favour of the petitioner was lawful. It was further argued that the respondent No, 2 who challenged the allotment order of the petitioner on the ground that the land in dispute was reserved for Public purposes (as Charand ghair mumkan) has not come to the court with clean hands as he is also possessing a.
Piece of land measuring 4 Kanal 8 Marlas in Khasra No, 739 in the light of entries in Khasra gardavri for Khareef 2009 and Khareef 2b10.Hence, the impugned orders passed by the respondent No, 5 in three different capacities is liable to be vacated.
5. It was further contended by the petitioner that the last order in review petition passed by the respondent No, 5 was passed on 12-4-2007. The writ was filed on 11-7-2007. The petitioner also submitted that written arguments on behalf of the petitioner are also on the record which may be taken into consideration and referred; 2005 YLR 1931, 2002 PLC (C.S.) 1282 and an unreported case titled"Muhammad Ilyas Khan and others v. Muhammad Hafiz Khan and others" and prayed for acceptance of the writ petition.
6. While controverting the arguments advanced by the petitioner Mr. S. Sardar Khan Advocate, learned counsel for the respondent No, 2 contended that the petitioner is admittedly a refugee who migrated in 1966 and got some evacuee property allotted in his favour measuring 43 Kanal and his other family members also got the evacuee land allotted in their names. The learned counsel further contended that under the provisions of Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land (Amendment) Act, 1989, The regularizations of Nautors and Grant of Khalsa Land Ordinance, 1974, has been amended, and under section 3, the petitioner is not eligible for allotment of the land as he is owner of the land more than 30 kanals, hence, the order of the Deputy Commissioner dated 12-2-1997 is void ab initio and the writ petition is liable to dismissal.
The learned counsel referred 1989 SCR 384, 2001 YLR 3139, 1998 SCR 258 (sic) and prayed for the dismissal of the writ petition alongwith heavy costs.
7. The learned Additional Advocate General Sardar M.R Khan adopted the arguments of Mr. Sardar Khan Advocate, and submitted that though the written statement has not been filed on behalf of the official respondent but the petitioner has to stand upon on his own legs to succeed. The learned Additional Advocate General supported the impugned order of the respondent No, 5 contended that as the allotment order was void ab initio and was issued in contravention of provisions of law, hence, the petition merits rejection.
8. In rebuttal of the arguments advanced by the S. Sardar Khan Advocate, on behalf of the respondent, the petitioner argued that the petitioner is admittedly a refugee and under law a refugee is entitled to the allotment of land to the tune of 64 Kanal as it is admitted fact that the petitioner is allottee of evacuee land measuring 43 Kanals and suit land measuring 9 Kanal 12 Marlas out of Khalsa land was allotted to the petitioner, and including both the allotments the petitioner is still short of 11 Kanals 8 Marlas land which point has never been discussed or considered and it is injustice to the petitioner and prayed for the restoration of allotment of disputed land.
9. I have heard the learned counsel for the parties and gone through the record of the case and found that none of the respondents except No, 2 have filed written statement, however, they have adopted the arguments of the respondent No,
2. The matter pertains to interpretation of relevant law for allotment, of the suit land, which has been decided by respondent No, 5 in three capacities concurrently.
10. It is added that the respondent No, 3 Talib Hussain despite service did not turn up for the reason that he has withdrawn his revision as he had withdraw his case during the pendency before the Additional Commissioner, hence the writ petition to the extent of respondent No 3 has become infructuous.
11. I have carefully perused the contents of the application where from it reveals that the petitioner initially moved an application for sanction of khalsa land under rules 1988, but during the pendency of the proceeding due to combustion in the court complex of Rawalakot on 30/31 May 1990 the file was burnt to ashes, hence in continuation of his previous application the subsequent application was moved and the allotment was sanctioned which is the bone of contention. However, all three reports/application etc are photocopies which cannot be taken into consideration.
12. As far as the impugned order of respondent No 5 are concerned, the crux of the impugned orders is that the allotment being against the provisions of amending Act, 1989 is void, ab initio. As far as for the amount paid by the petitioner for the allotment of land is concerned, the respondent No, 5 has opined and Observed that the petitioner has right of refund under rules. For proper appreciation it deems expedient to reproduce the relevant legal provisions:-- ' THE AZAD JAMMU AND KASHMIR REGULARIZATION OF NAUTORS AND GRANT OF KHALSA LAND ORDINANCE, 1974.
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2. Definitions:---In this Ordinance unless there is anything repugnant in the subject or context Xxxxxxxxxx
(iv) Holding means a cultivated land holding of a person which shall comprise the proprietary land together with the evacuee land, if any, in his possession'
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3. (Regularization of existing Nautors:---(1) A person to whom right in respect of Khalsa land had accrued under Council Orders No, 38/C, 40/C of Dogra Regime or any order of Poonch State or Government Order No, 282/57, and the right could not be granted due to absence of entry in the revenue record as required under Government Order No, 282/57, shall be entitled to the grant of proprietary rights: ' Provided it is proved before the Collector of the district, after such enquiry as may be prescribed, that such person has been in continuous possession of Khalsa land and recorded as such in the revenue record before Rabi, 1957 A.D. Such grant may be made on payment of premium and subject to limitation as laid down in the aforesaid orders, as amended from time to time: ' Provided further that Nautors which do not fulfil the conditions laid down in Government Order No, 149/60 dated 11-3-1960 shall not be regularized.
(2) Proprietary rights for Nautors made out of Khalsa land after Rabi, 1957 A.D, and before 17th June, 1985 shall be granted by the Collector of the district, in the name of Nautor Kunindah----
(a) whose entire holding including Nautor do not exceed eight Kanals, without payment; or
(b) whose entire holdings including Nautor exceed eight Kanals but do not exceed thirty Kanals, on payment of market price or at the rate of Rs. 2000 per kanal whichever is less.
(3) Proprietary rights under subsection (2), shall be granted only when it is proved before the Collector of the district concerned that the Nautor kunindah has been in continuous possession of the Nautor and recorded as such in the revenue record: ' Provided that for this purpose where revenue record does not exist the Collector shall satisfy himself through an enquiry to be conducted by a Revenue officer not below the rank of Tehsildar".
(4) All sanctions of N'"!Tor shall be incorporated in the revenue record through mutation to be attested by Revenue officer not below the rank of Assistant Collector 2nd grade: ' Provided that the Nautor which is likely to be required for any Government purpose or common village purpose shall not be regularized.
(5) A land owner in possession of .Nautor exceeding thirty kanals including his own holdings, shall be liable to summary ejectment by an officer not below the rank of Naib Tehsildar.
(6) The provisions of this section shall not apply to the areas falling within the limits of Town Committees and Municipal Committees.
' The holding of Nautor Kunindah for the purpose of this section shall be the holding as it stood on 15-6-1985 and any transfer made by him after this date shall be reckoned in his holding.
' No Nautor exceeding 30 kanals including the holding of a Nautor kunindah shall be regularized in any case and the said Nautor kunindah shall be summarily ejected by a Revenue Officer not below the rank of Naib Tehsildar.
' Keeping in view the above legal position no violation of law has been committed by respondent No, 5 in passing the impugned order hence the petition fails.
' Other points are matter of fact which cannot be considered by this court in constitutional jurisdiction as all the points of facts have been adjudicated by the Tribunal of Exclusive jurisdiction which do not merit interference by this Court as it has been held time and again by the apex court.
This view of the Court also finds support from 2007 SCR 263.
' The nutshell of the above discussion is that the instant petition stands dismissed with no order as to costs.