MOHAMMAD SHERAZ KAYANI, J.---Through the above captioned petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, following reliefs have been implored by the petitioners:- It is, therefore, most respectfully prayed that the writ petition may kindly be accepted and the impugned order be set aside declaring it as void ab initio order, with costs.
2. Any other appropriate relief admissible under law may also be granted to the petitioner."
2. Succinct summary of the facts, culminating into filing the instant writ petition are that Tehsildar, Samahni, under the Land Reforms Act, 1960 issued a general order, whereby, the revenue officials were directed to change the status of tenants at will, under the old owners as co-sharers/owners. It has been stated that an entry was also directed to be made in the revenue record. Raja Muhammad Yaqoob Khan, the petitioner/predecessor of the present petitioners, along with others, being aggrieved from the said order, filed an application before the Settlement Officer, Mirpur on 22.11.1989, for correction of revenue record, which was allowed by the Additional Collector, Samahni vide order dated 25.11.1998. In compliance, whereof, the status of tenants at will was restored, however, on appeal filed on behalf of the private respondents, the Commissioner, Mirpur Division Mirpur accepted the appeal vide judgment dated 28.07.2004, whereupon, the petitioners filed an appeal before the Full Board, Board of Revenue, which was dismissed vide judgment dated 24.03.2006. It has been stated that a review petition was filed against the judgment dated 24.03.2006, before the Board of Revenue, and the matter was again referred to the Full Board, Board of Revenue, by the Member Board of Revenue. It has been alleged that the officer, who had already decided the appeal, as Commissioner, Mirpur Division Mirpur, presided the session of Full Board, Board of Revenue as Senior Member, Board of Revenue and vide judgment dated 23.12.2010 dismissed the review petition. It has been claimed that the Senior Member, Board of Revenue, having rendered his verdict upon the same matter, as Commissioner Mirpur Division was not competent to hear an appeal or revision, filed against his own judgment, therefore, the judgment of the Full Board, Board of Revenue dated 23.12.2010 is a nullity in the eye of law.
3. The respondents were summoned for filing written statement and the needful has been done by them, accordingly and separately. In the written statement, filed on behalf of official respondents, while negating the stance of the petitioners, it has been stated that the order of the Additional Collector/Assistant Commissioner, at the face of it was an illegal one, whereas, the judgment and order of the Commissioner was passed in a legal manner, after considering all the relevant laws and factors and the same does not suffer from any illegality or irregularity, that's why, the appeal filed before the Board of Revenue and later on, the review filed before the Full Board, Board of Revenue have been dismissed. It has been claimed that after availing all legal remedies, the petitioners are not entitled to invoke the extra ordinary jurisdiction of this Court and re-agitate a past and closed transaction. The petitioners have not approached the Court with clean hands, therefore, they are not entitled to any relief by this Court.
4. Messrs Raja Hassan Akhtar, and Raja Khalid Mehmood, Advocates, the learned counsel for the petitioners, while resubmitting the facts of the petition contended that new owners cannot be entered as co-sharer/owners in the revenue record. The learned counsel contended that the Supreme Court of Azad Jammu and Kashmir, in its judgment dated 20.12.1991 has held that the new owners are not co-sharers in the old Shamilat-e-deh land. The learned counsel maintained that earlier when the appeal was decided by the then, Commissioner vide judgment dated 28.07.2004 and the learned Commissioner, later on, (after promotion) also presided the Full Board, Board of Revenue as Senior Member and endorsed and upheld his own findings vide order dated 23.12.2010, which he was not competent to do. The learned counsel also contended that the arguments were heard by another team of the Full Board, Board of Revenue, whereas, the judgment under challenge has been handed down by another bench, headed by the said officer. Finally, the learned counsel maintained that the matter of correction in the entries of revenue record, lies in the sole domain of the revenue authorities and they are under legal obligation to discharge their duties, as per law, therefore, by accepting the instant writ petition, the respondents be directed to do the needful, as per the verdict of the Shariat Court as well as the Supreme Court of Azad Jammu and Kashmir.
5. Syed Nishat Hussain Kazmi, Advocate, the learned counsel for respondent No,11, that in the present petitioners, only a daughter of the original petitioner is contesting, whereas, the other petitioners had never been a party in such a lengthy litigation spreading over scores of years. The learned counsel added that respondents Nos,10 and 12 have passed away, however, their legal heirs have not been brought on record, which was mandatory requirement. The learned counsel, defended and supported the impugned judgment and orders of the Revenue Court on all angles and contended that Muhammad Yaqoob, petitioner was the only person, amongst the inhabitants of the relevant, who felt aggrieved and approached the revenue authorities. The learned counsel stressed the point that the order passed by the Full Board, Board of Revenue dated 23.12.2010 has been challenged through this petition, after a period of more than (7) months, hence, the petition is hit by laches and merits dismissal on this ground, too.
6. Ch. Muhammad Mumtaz, Advocate, the learned counsel for respondent No,10, while adopting the arguments raised on behalf of the learned counsel for respondents Nos,11 and 12, added that his client is an old owner in the village and his name has been entered in the line of respondents, without any justification. He has purchased the Shamilat-e-deh in the village. The learned counsel also drew the attention of the Court towards the limitation, involved in the case and craved for dismissal of the petition, with costs.
7. I have heard the learned counsel for the parties, scanned the record in light of their respective arguments and considered the controversy with utmost care.
8. The main controversy in the case is that whether, the new occupancy tenants, who acquired the rights of ownership under the Land Reforms Act, can be entered as 'co-sharers' in Shamilat, in the revenue record. In this regard it may be stated that through the Land Reforms Act, 1960, wherein, section 25 pertained to extinction of occupancy tenancy by acquiring the rights of ownership and such owners are called new owners. Through addition of section 25(A), in 1972, it was declared that the new owners are entitled to their proportional share of shamilat-e-deh land, without payment of any additional charges/price.
For proper perception, relevant section is reproduced, which is as under:-- "25-A. (a) An occupancy tenant who has acquired the proprietary rights under the provisions of section 25 (hereinafter called the new land owner) shall also be entitled without payment of any compensation to a share in the Shamilat Deh in proportion to the land in respect of which he has acquired such rights."
9. Through the above enactment, the occupancy tenants were bestowed the right of their shares in the Shamilat-e-deh without payment of compensation but the said law, being repugnant to the injunctions of Islam, was challenged before the Shariat Court of Azad Jammu and Kashmir through a Shariat Petition and the controversy was set at naught by the Court, vide judgment dated 12.01.1991, wherein, a division bench of the Court, has observed as under:- "12.The conclusion is that no ceiling or restriction on the limit of holding of land owned and possessed by a person, in an Islamic State, can be fixed by the Government. The Government, on the other hand, is not empowered to resume land in exercise of the newly prescribed by the Act, without fair compensation. Reference to the compensation always means the compensation equivalent to the current market value of the property.
13. In present case, as noticed earlier, the questioned provisions of law divest and deprive the land owners from their share in Shamilat-e-deh land, without payment of compensation. Moreover, share of each land owner (old Land owner) is fixed in derogation to his proportionate share in the Shamilat-e-deh land. Therefore, apart from the fact that a ceiling on share in Shamilat-e-deh is not conceived by Islamic law, an owner of land cannot be deprived of his rights in the land without fair compensation. The statute provides no definite objective scheme, justifying the deprivation of land owners by virtue of the impugned provisions of law. The impugned provisions of law are, therefore, quite in contravention of the Islamic injunctions.
10. In the above case, while striking down the above section 25-A of the Act, it was observed as under:- "14. In presence of the verdict of the Supreme Court (based on majority view), the petition is accepted. It is held that the provisions of Section 25-A of the Land Reforms Act enforced vide Act No,VI of 1972 are repugnant to the injunctions of Islam. These provisions are not to be given effect, whatsoever, detrimental to the title and interest of the land owners in the village."
11. The matter was also considered by the apex Court of Azad Jammu and Kashmir in case titled Said Akbar and 11 others v. Muhammad Shakoor and 2 others' [2017 SCR 108] wherein, the Hon'ble apex Court, while upholding the view of the Shariat Court, has pleased to observe as under: "We respectively agree with the view expressed by the learned Judge in the High Court in the referred judgment. From the record produced by the plaintiffs-appellants, herein, pertaining to year 2003-2004 Bik and 1960-61, prior to promulgation of the Land Reforms Act, 1960, the defendants-respondents are shown as owners of the land while plaintiffs-appellants are shown in illegal possession (Ghair Mauroos) in Shamilat deh land, which is the subject matter of the case in hand. The illegal possession confers no right in a party. The Land Reforms Act, 1960 confers no right in Shamilat deh land to a person who was in illegal possession of the land prior to the enforcement of Land Reforms Act, 1960. Had the plaintiffs been occupancy tenants in the Shamilat-e-deh, then they would have been entitled for proprietary rights of the same in the light of the provisions contained in the Land Reforms Act, 1960. The plaintiffs were not occupancy tenants in the Shamilat-e-deh land. They were in illegal possession of the same therefore, they have no right to claim share in the Shamilat-e-deh land. Only those persons, who were owners in the village prior to promulgation of the Land Reforms Act, 1960, are entitled to be sharer in the Shamilat-edeh. A tenant, who is in illegal possession of the land cannot be granted the title of an owner."
12. In a case titled, Azad Government through Advocate General v. Raja Waleed Khan, Civil Appeal No,30/1991, decided on 12.11.1992, the controversy was considered and also resolved. Relevant observation lies at page 16 of the judgment, which reads as under:- "It is evident from the view taken by Maulana Abul Aala Modoodi that the Holy Quran and Sunnah permit to take a property without compensation only from a usurper, but in case of old ownership, it is not possible to ascertain that the same were got through lawful or unlawful means. Thus, if it necessary to bring the reforms in private holdings, it can only be done by purchasing the lands from the owners and distributing the same to the needy."
13. From the survey of the above case law, it is crystal clear that only the old owners are entitled in the Old Shamilat-e-deh land according to their proportionate shares in the holding. New owners, who acquired the proprietary rights under the Land Reforms Act, are not co-sharers in the Old Shamilat-e-deh land. However, any person who had purchased a land from an old owner with share of Shamilat-e-deh land, definitely would be entitled for the Shamilat-e-deh land according to his proportionate share of the purchased land.
14. As far the contention of the learned counsel for the respondents regarding the entries of the revenue record is concerned, the law is well settled on the point that the entries of revenue record do not confer any right upon the person, so entered and the rights are always thrust upon a person under law. When, the said enactment, in pursuance whereof, the entries were made, has come to an end, no question of keeping such entries intact arises, as the revenue record is to be up-dated, periodically.
15. It may also be observed that after the decision of the Shariat Court, reversal of the impugned enactment, no uniform and general policy has been framed, as a result whereof, indefinite litigation has been started.
16. When the law was laid down by the Shariat Court and stood endorsed by the apex Court, it was enjoined upon the concerned authorities of the Revenue Department to frame and give a uniform and general policy to culminate the controversy, once for all but the needful has not been done in absence of such policy decision, it will serve no purpose rather it will give rise to further litigation, therefore, this Court is inclined to direct the respondents-concerned authorities of the Revenue Department to frame a uniform policy in light of above observations, the Board of Revenue should have given the broader guidelines to the sub-ordinate authorities to give effect to the judgments of the Superior Courts in this regard. When section 25-A of the Act is no more a part of the Statute Book, then any entry made in pursuance of that law in the revenue record shall be deemed as null and void. The Revenue officials are quite competent to update the revenue record, periodically. The impugned order of the Board of Revenue dated 23.12.2010 is, thus, bad in law. The Senior Member of the Board, who had already expressed his opinion as a Commissioner was not competent to decide the same case, in the Board of Revenue, through the impugned order and thus the said order is liable to be set aside on this sole ground as well.
17. Moreover, the dates given in the relevant judgments were meant to strike off, the provision 25-A of the Act from the Statute Book mention of such dates does not give protection to the revenue entries made in pursuant of the repealed section. As it has already been observed that the entries in the revenue record, themselves, do not confer any right of ownership, when the same is found contrary to law having no statutory backing, that can be corrected by the revenue officials under the Land Revenue Act, 1967. So there is no logic and legal foundation, to give protection to such entries.
18. The pith and substance of the above detailed discussion is that the instant writ petition is accepted. The impugned order of the Board of Revenue dated 23.12.2010 is set aside and the case is remanded to the Board for afresh decision. The respondents are directed to frame a uniform and general policy, strictly following the dictum of the Shariat Court as well as the apex Court and resolve the controversy, forever.