1999CLC 1381 (PLP)

Kh. Shahad Ahmed, Advocate for Respondent No.3. Date of hearing: 19th November, 1997. MUHAMMAD YUNUS SURAKHVI, J.‑ This appeal, with the leave of the Court, is directed against an order passed by the High Court of Azad Jammu and Kashmir on 17‑7‑1997, whereby the writ petition filed by the appellants, herein, was dismissed in limine.

2. The precise facts, culminating into the present appeal, are that Azad Government of Jammu and Kashmir through a Notification dated 6‑6‑1997 leased out the land measuring 235 Kanals and 17 Marlas, comprising Survey Nos.338 and 339, situate in village Saran Dakhli Gann Chatter Tehsil and District Muzaffarbad to Muzaffarabad Development Authority for a period of 50 years‑ of consideration of Rs.150 per Kanal,. for every 5 years. The appellants challnged the vires of the Notification on the ground that they were in continuous possession of 70 Kanals of land to survey No.339 since 1957. It was also alleged that they were entitled to proprietary Rights of the said land under the provisions of Azad Jammu and Kashmir Regularisation of Nautors and Grant of Khalsa Land (Amendment) Act, 1989. and, as such the lease would adversely affect the rights vested in the appellants and the same may be declared as unlawful and without any lawful authority.

3. A learned Judge in the High Court dismissed the writ petition in limine on the following grounds:‑ (i) That a person can be granted Khalsa land to his possession provided the land owned by him is less than 8 Kanals. Obviously, the petitioner (appellants) do not fall in this category because share of each of them in their ownership is more than 15 Kanals; and (ii) That under clause (b) of subsection (2) of section 3 of the Azad Jammu and Kashmir Regularisation of Nautors and Grant of Khalsa Land (Amendment) Act, 1989, the land can be granted on the payment of Rs.2,000 per Kanal whose holding exceeds 8 Kanals but does not exceed 30 Kanals including Khalsa land occupied by him. In the present case the land owned by each of the appellants added with Nautor comes to more than 32 Kanals.

4. We have heard the learned counsel for the appellants as well as the learned counsel for respondents. The above findings recorded by the learned Judge in the High Court have not been challenged by the appellants in memorandum of appeal nor was it argued by the learned counsel for the appellants that the calculation of the holding or the land falling within the share of appellants was not correctly worked out. Even otherwise, we are of the opinion that proviso of subsection (4) of section 3 of Azad Jammu and Kashmir Regularisation of Nuators and Grant of Khalsa Land (Amendment) Act, 1989 clearly postulates that the Nautor which is likely to be required for any Government purpose or common village purpose shall not be regularises. For W the sake of convenience proviso of subsection (4) of section 3 is reproduced below:‑‑

"Provided that the Nautor which is likely to be required for any Government purpose or common village purpose shall not be regularised. " In the instant case, vide the Government Notification dated 6‑6‑1997 the land has been leased out to Muzaffarabad Development Authority for the purpose of establishing Green spots which obviously falls within the ambit of the aforesaid proviso.

5. For the foregoing reasons, finding no substance in the appeal, it is hereby dismissed with costs. H.B.T./349/SC(AJK) Appeal dismissed.