' MASOOD AHMED SHEIKH, J.---The titled appeal with leave of the Court arises out of the judgment of the High Court dated 13.6.2014, whereby Writ Petition No,817 of 2008 filed by the respondents, herein, has been accepted and the impugned orders dated 2.10.2002, 26.5.2003, 31.3.2004 and 15.9.2008 have been set aside.
2. The controversy between the parties started from an order passed by the Tehsildar/Assistant Collector on 2.10.2002, whereby Muhammad Hussian, father of the real respondents, herein, was ordered to be ejected from the land bearing Khasra numbers 44, 63/1, 64 and 65 measuring 7 kanal 8 marla kachrai, and Khasra number 83 measuring 7 kanal 15 marla, khalsa sarkar. However, he was exempted to be ejected from the crown land bearing Khasra number 82/1, measuring 1 kanal 8 marla, upon which he had constructed a house, subject to obtaining of approval within a period of two months. The said order passed by the Tehsildar/Assistant Collector was challenged before the Additional District Collector through an appeal. The Additional District Collector, vide order dated 26.5.2003 accepted the possession of the respondents, herein, and construction of houses, however, he declared that the respondents, herein, are only entitled for 1 kanal and 8 marla land and maintained the order of ejection. A revision petition against the said order preferred before the Additional Commissioner Muzaffarabad Division was also dismissed vide order 31.3.2004.
Mushtaq Hussain and others, respondents herein, challenged the said order before the Board of Revenue and the Board of Revenue, after hearing the parties, dismissed the appeal through order dated 15.9.2008. Against the said order the respondents herein, filed a writ petition in the High Court. The High Court while accepting the writ petition has remanded the case to Tehsildar/Assistant Collector, Muzaffarabad through the impugned judgment dated 13.6.2014, which is the subject of the instant appeal.
3. Syed Mushtaq Hussain Gillani, Advocate, the counsel for the appellant, submitted that the judgment of the High Court is against law and the record. The High Court has not applied its judicial mind while delivering the impugned judgment. He further argued that to determine the nature of the land that whether it is crown land, common pasture, 'residential land or inherited one, only the Revenue Authorities/Courts are competent. No other authority or Court has jurisdiction to determine the same. The revenue Courts have recorded concurrent findings while resolving the controversy, which couldn't be altered or disturbed by the High Court. The learned counsel argued that respondents Nos.1 to 7, in the writ petition, have relied upon Notification No, 90 dated 15.7.1997, whereas no such notification has been annexed with the writ petition rather a proposal to the settlement Officer District Muzaffarabad has been attached with the writ petition, through which while passing an order on 22.10.1997, the land was declared as crown land and common pasture for the inhabitants of the village Manak Peyan. This order is yet intact but this fact was concealed by the respondents deliberately. It is further argued that the mutation No, 98 which was made ground by the High Court to remand the case was neither appended with the writ petition nor was relied upon by the respondents before the Tehsildar/ Assistant Collector, Additional Collector, Additional Commissioner and the Board of Revenue. Moreover, the said mutation No, 98 was not attested by the Assistant Collector. The same was submitted to the Settlement Officer/Collector District Muzaffarabad for approval, which was not approved. Therefore, the judgment of the High Court is not maintainable. He further argued that while remanding the case the High Court has ignored the principle laid down by the Hon'ble Supreme Court in the cases reported as Arif Mehboob and 7 others v. Zahir Ahmed alias Muhammad Zahid and 10 others (2007 SCR 410) and Muhammad Irshad Khan v. Azad Jammu and Kashmir Council and 3 others (2007 SCR 419), which are of the binding nature over the High Court and all other Courts falling within the territorial jurisdiction of the Azad Jammu and Kashmir. The land has been entered as crown land in the record of rights for the year 1998-99 and the respondents were in knowledge of the same but they did not challenge the said entries at any forum, hence the same has attained finality. The learned counsel further argued that the respondents were not aggrieved persons, hence they were not entitled to invoke the extra ordinary jurisdiction of the High Court. The learned counsel has brought our attention towards the orders dated 22.10.1997 and 26.10.1997 of Collector Settlement and mutation No,98. He has also reproduced the contents of the said order passed by the Collector Settlement in his written arguments as well. The learned counsel lastly requested for acceptance of the appeal.
4. While controverting the arguments of the learned counsel for the appellants, Nasir Mehmood Mughal, Advocate, the counsel for the real respondents, argued that the judgment of the High Court is perfectly legal. He further contented that through mutation No,98, the Tehsildar/ Assistant Collector has sanctioned the certain crown land in to Shamilat Deh land. The respondents are owners of the land in the village. So they are entitled to the share in the Shamilat Deh land. The learned counsel further submitted that mutation No,98 and orders of the Collector Settlement by which the approval of the Shamilat Deh in the village Manak Peyan was approved by the Collector Settlement after few modifications. He requested for dismissal of appeal.
5. We have heard the learned counsel for the parties and also perused the record. The controversy between the parties seems to revolve around mutation No, 98 and orders of the Collector Settlement dated 22.10.1997 and 26.10.1997. The order of the Collector through which he has approved under law the land as Shamilat Deh from crown land for the owners in the village shows that he had approved mutation No, 98 prepared by the office of the Assistant Collector/Tehsildar, Muzaffarabad except few modifications recorded in his order dated 22.10.1997. In exercise of powers under section 5 of the Azad Jammu and Kashmir Grant of Khalsa Waste Land as Shamilat-Deh Act, 1966, the Collector Land Settlement Muzaffarabad vide order dated 22.10.1997 granted approval that the land bearing khasra No, 65, measuring 44 kanal 4 marla, Khasra No, 129 measuring 1 kanal 3 marla, Khasra No, 130 measuring 2 kanal 16 marla, Khasra No, 183/1 measuring 1 kanal 17 marla, Khasra No, 184 measuring 4 kanal 6 marla, khasra No, 185 measuring 1 marla, khasra No, 191 measuring 46 kanal 15 marla, Khasra No, 235min measuring. 2 kanal, total measuring 121 kanal 2 marla be entered as Ka'chrai and from the same Khata the remaining land bearing Khasra No, 235 measuring 48 kanal 8 marla, Khasra No, 7 measuring 2 marla, Khasra No, 8 measuring 140 kanal 11 marla, Khasra No, 9 measuring 19 marla, Khasra No, 11 measuring 11 marla, Khasra No, 63/1 measuring 14 marla, Khasra No, 64 measuring 14 marla, Khasra No, 173 measuring 8 kanal 14 marla, Khasra No, 174 measuring 1 kanal 3 marla, Khasra. No, 261 measuring 9 kanal 13 marla, Khasra No, 182 measuring 8 kanal 12 marla, khasra No, 205 measuring 10 Marla, Khasra No, 206 measuring 10 kanal 15 marla, Khasra No, 207 measuring 1 kanal 4 marla, Khasra No, 211 measuring 1 kanal 13 marla, Khasra No, 212 measuring 36 kanal 11 marla, Khasra No, 218 measuring 4 kanal 15 marla, Khasra No, 220 measuring 3 kanal 5 marla, Khasra No, 201 measuring 8 kanal 2 marla, total land measuring 286 kanal 16 marla was ordered to be entered as Shamilat Deh land, which includes survey Nos. 63/1 and 64 which respondents claim to be in their possession.
6. Under subsection (1) of section 5 of Azad Jammu and Kashmir Grant of Khalsa Waste Land as Shamilat-Deh Act, 1966, the mutation is required to be sanctioned by the Settlement Officer or the Assistant Officer and it cannot be sanctioned by the Assistant Collector/Tehsildar without approval of the Settlement Officer. The relevant portion of the provisions reads as under:- "5. Grant of shamlat deh rights.---(1) Shamilat rights hereby granted out of State-owned lands, other than demarcated forests, shall be recorded up to the extent of 100 per cent of cultivated area in a village in 1982 (Bikrami), subject to availability of such land in that village. Only one mutation of shamilat deh shall be attested in any one village under this subsection and such mutation may be sanctioned by the Settlement officer or Assistant Settlement officer.
' Provided that mutation of an area in excess of 800 kanals shall be sanctioned by the Settlement Commissioner or an officer specially authorized by him."
' The Collector Settlement in exercise of powers under section 5 of the said Act has accorded approval for grant of mutation No, 98 and thereafter, on the order of the Collector Settlement the said survey numbers were entered in mutation No, 98 shown in column Nos.12 to 14, hence mutation No, 98 has been finalized. It will be pertinent to mention here that according to section 8 of the said Act, order of the Revenue Officer may be challenged through appeal, review or revision but none of inhabitants or any person/owner in the village has challenged the said mutation No,98 before the competent authority, therefore, the process of sanction and approval of mutation No, 98 has attained finality. The contention of the learned counsel for the appellant that mutation No, 98 has not been attested by the Assistant Collector and approval has not been granted by the Collector District Muzaffarabad, is repelled being misconceived. The order of the Collector dated 22.10.1997 and the contents of mutation No, 98 recorded in column 12 to 14 show that mutation No, 98 has been duly sanctioned and approved by the competent Revenue Officer.
7. So far as the point regarding the jurisdiction of the High Court under Constitution and concurrent findings of the Revenue authorities is concerned, we have perused the record and found that the respondents after legal exercise before the Revenue authorities up to the Azad Jammu and Kashmir Board of Revenue, have sought remedy by filing the writ petition before the Azad Jammu and Kashmir High Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 on the ground of absence of alternate remedy. The Azad Jammu and Kashmir Board of Revenue is last authority under the law to decide the lis between the contesting parties or aggrieved party. In the matter in hand, the alternate remedy against the decision. Of Azad Jammu and Kashmir Board of Revenue is not provided in the Azad Jammu and Kashmir Board of Revenue Act, 1993, and the rules framed thereunder, therefore, the writ petition filed by the respondents before the High Court was competent under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, hence the respondents have rightly challenged the findings of the Revenue authorities to seek efficacious and alternate remedy. Moreover, the Revenue Courts have not considered mutation No, 98, which is misreading of record and concurrent findings of the Revenue Courts, suffering from legal errors up to the Azad Jammu and Kashmir Board of Revenue, are not maintainable. The judgment of the High Court doesn't adversely affect the rights of the parties because the High Court by accepting the writ petition has remanded the case to the Tehsildar Muzaffarabad to dispose of the matter after considering mutation No, 98 in accordance with law.
The case law referred to by the counsel for the appellants has no nexus with the case in hand. The judgment of the High Court is based on the facts and record. No illegality or irregularity is found in the impugned judgment, hence the impugned judgment warrants no interference.
The nut shell of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to costs.