Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 557 (JK)

Gh. Rasool Mistri v. State of J&K

2018-07-24

ALI MOHAMMAD MAGREY

body2018
JUDGMENT : 1. These four clubbed writ petitions have been heard together, and I proceed to decide and dispose of the same by this common judgment. 2. These petitions essentially relate to land comprised in Survey no.437 situated in estate Rampora, located in the heart of the City of Srinagar. The first of these writ petitions is OWP no.1536/2012 which has been filed by four petitioners. The petitioners claim the land comprised in Survey no.437 situated in estate Rampora to be State land and in their possession by virtue of some relinquishment deeds, and, therefore, claim conferment of ownership rights therein. They also allege interference in their possession by the Srinagar Municipal Corporation. One of them, namely, Gh. Rasool Mistri, is also the lone petitioner in the other two writ petitions, OWP no.1784/2012 and OWP no. 809/2013; whereas the fourth writ petition, OWP no.1166/2016, has been filed by the Srinagar Municipal Corporation challenging the order dated 07.07.2015 passed by the Financial Commissioner (Revenue), Srinagar, in revision file no.2/FC-AP titled Gul Sheikh & 21 others v Assistant Commissioner (Rev.), Srinagar. The matter calls for delineation of the backdrop of these petitions as pleaded by the petitioners. 3. The writ petition, OWP no.1536/2012, calls in question order no.DCS/RD/Roshni/76-83 dated 26.07.2012, whereby the Deputy Commissioner, Srinagar, has rejected the petitioners’ applications for conferment of ownership rights over land measuring 7 Kanals comprised in Survey no.437/min situated in Estate Rampora, Chattabal, Srinagar. The petitioners have also sought directions to the respondents: (i) to give ownership rights to them in respect of the aforesaid patch of land on the analogy of one Mst. Zainab Begum and Mirza Maqsood Ali, appellants 3 and 4 in LPA no.71/2005; (ii) not to cause interference with their settled possession over the land; (iii) to conduct probe through special investigation team against the officials of Srinagar Municipal Corporation for allegedly violating the orders of the Court to accommodate the persons mentioned in OWP no.855/2011. 4. The petitioners claim to be in possession of the aforesaid patch of land pursuant to certain relinquishment deeds. They describe the land to be State land. In that capacity, they are stated to have sought conferment of ownership rights under the provisions of the Jammu and Kashmir State Land (Vesting of Ownership Rights to the Occupants) Act, 2001 (hereinafter, for short, the Act). They describe the land to be State land. In that capacity, they are stated to have sought conferment of ownership rights under the provisions of the Jammu and Kashmir State Land (Vesting of Ownership Rights to the Occupants) Act, 2001 (hereinafter, for short, the Act). According to them, since their applications were not processed, they, alongwith two similarly situated persons, namely, Mst. Zainab Begum and Mirza Maqsood Ali, filed OWP no.174/2003. The said writ petition was dismissed on 21.07.2005. 5. The aforesaid Court order dated 21.07.2005, dismissing the writ petition, was challenged by the petitioners in LPA no.71/2005 which was disposed of by the Division Bench by order dated 07.07.2011. The Division Bench in its aforesaid order noticed that the application of the third appellant therein, namely, Mst. Zainab Begum, had been processed by the respondents and, consequently, by order no.253-254/CRA/M dated 18.08.2007, the Deputy Commissioner had conferred ownership rights in respect of land measuring 02 Kanals, 19 Marlas and 48 Sft under Survey no.437/min on her, and directed the Tehsildar South, Srinagar, to attest mutation of the said land in favour of the 3rd appellant. The Division Bench, therefore, directed the Tehsildar South, Srinagar, to process the applications of the appellants 1, 2, 4, 5 and 6 in terms of Section 5 of the Act, if the said appellants had filed those applications in time and in accordance with the specifications set out in the said provision of the Act. 6. It is averred by the petitioners that during the pendency of the aforesaid LPA, the respondents also conferred ownership rights in respect of land measuring 02 Kanals, 17 Marlas comprised in Survey no.437/min on appellant no.4 vide order dated 09.05.2007. 7. It may be observed here that the Srinagar Development Authority is stated to have filed a review petition against the aforesaid order no.253-254/CRA/M dated 18.08.2007 issued by the Deputy Commissioner, Srinagar, conferring ownership rights on the third appellant in LPA no.71/2005, namely, Mst. Zainab Begum, which is, however, stated to have been dismissed by the Deputy Commissioner by order dated 07.04.2008. 8. Zainab Begum, which is, however, stated to have been dismissed by the Deputy Commissioner by order dated 07.04.2008. 8. Thereafter, the Deputy Commissioner, Srinagar, i.e., respondent no.5, by his order issued under endorsement no.DCS/RD/Roshni/76-83 dated 26.07.2012, rejected the applications filed by four of the appellants in LPA no.71/2005, i.e., the petitioners herein on the grounds, firstly, that the applications filed by the petitioners before the Assistant Commissioner, Nazool, Srinagar, are not in accordance with the provisions of the Act; secondly that the land in question measuring 24 Kanals and 11 Marlas falling under Survey no.437 situated at Rampora, Srinagar, stands recorded in the name of Srinagar Municipal Corporation on the directions of Assistant Commissioner (Rev) Srinagar dated 20.07.1992 which had been upheld by Financial Commissioner (Rev), J&K vide order no.2/AP-FC/1997 dated 25.11.1997, and, therefore, comes within the ambit of Section 8(b) of the Act; thirdly that the Srinagar Development Authority has also staked claim on the land; fourthly, that the land was located on the vital Srinagar-Baramulla National High Way and could be required for public purposes in future. This order, as mentioned earlier, is impugned in this writ petition. 9. The fact that possession of land measuring 41 Kanals, 01 Marla comprised in survey nos. 7 and 437 of estate Batamaloo and Rampora, respectively, had been handed over to Srinagar Municipality is admitted by the petitioners herein, in para 12 of the petition. It is, however, stated that the said order, bearing no.498/LR dated 20.07.1992, issued by the Assistant Commissioner (R), Srinagar, was challenged by the petitioners and their predecessors in interest before the Financial Commissioner (Rev) through revision petition titled Gul Sheikh & ors. v. Dy. Commissioner, Srinagar, and that the Financial Commissioner on 19.03.2003 had stayed the said order. 10. The above revision petition, as would be shown later in this judgment, was, however, disposed of by order dated 07.07.2015 with direction to the concerned authorities to dispose of the cases of the petitioners under the provisions of the Act subject to certain riders mentioned in the order. This order is has been challenged by the Srinagar Municipal Corporation in writ petition, OWP no.1166/2016, and, therefore, would be referred to at appropriate place later in this judgment. 11. This order is has been challenged by the Srinagar Municipal Corporation in writ petition, OWP no.1166/2016, and, therefore, would be referred to at appropriate place later in this judgment. 11. So far as the present petition is concerned, it is averred that the Srinagar Municipal Corporation, in an absolutely highhanded manner, by abusing its authority, is trying to forcibly dispossess the petitioners from the peaceful, continuous and settled possession of the land measuring 7 Kanals under Survey no.437/min, though the Corporation, according to them, has no authority to evict them, as it has never been in possession of the said land. This submission is sought to be buttressed by reports dated 02.11.2004 and 01.12.2004 submitted to the Deputy Commissioner, Srinagar, by the Assistant Commissioner, Nazool, Srinagar, and Tehsildar, Srinagar, respectively, copies whereof have been placed on record of the petition. 12. It is also averred that one of the petitioners, namely, petitioner no.3, has filed a suit for permanent injunction against the respondents before the court of 1st Subordinate Civil Judge (Municipal Magistrate), Srinagar. Co-extensive therewith, he filed an application for grant of interim injunction which was rejected by order dated 26.04.2006. The Civil Miscellaneous Appeal filed by the said petitioner against the aforesaid rejection order was also dismissed by the appellate court by order dated 27.04.2007. The petitioner, thereafter, is stated to have filed a civil revision no.61/07 before the High Court which is stated to have been allowed by order dated 06.06.2008 with direction to the trial court to consider the matter afresh, and till then, it was ordered that, status quo as obtaining on the spot shall prevail subject to further orders by the trial Judge. It is stated that, thereafter, the trial court by order dated 01.05.2010 directed SHO Police Station concerned to see that the order of status quo passed by the High Court was maintained on the spot. 13. It also needs a mention here that prior to the filing of the present petition by the petitioners, two other persons, namely, Adnan Manzoor Ahangar and Zahoor Ahmad Wani, Chairman, Sakoon Housing Cooperative, are stated to have filed a writ petition, OWP no.855/2011, claiming the conferment of ownership rights vis-à-vis a portion of the land. Therein, the petitioner no.3 herein, Gh. Therein, the petitioner no.3 herein, Gh. Rasool Mistri, had sought impleadment as party respondent and was, in fact so impleaded as respondent no.7 therein by order dated 23.09.2011 with direction to file reply within two weeks. The petitioners herein allege that the Srinagar Municipal Corporation is hand in glove with the aforesaid two persons - Adnan Manzoor Ahangar and Zahoor Ahmad Wani, and that the Cooperation, therefore, for oblique motives and extraneous considerations is trying to illegally and forcibly evict and dispossess the petitioners from the land under Survey no.437/min. Hence the present petition for the reliefs, first above mentioned. 14. It would be appropriate to mention here that alongwith the aforesaid writ petition, the petitioners filed two civil miscellaneous applications, CMP no.2491/2012 and CMP no.2492/2012, the first one being for grant of interim relief and the second one for appointment of a Commissioner. 15. The petition first came up for consideration before the Court on 15.11.2012, and while issuing notice in the main petition, the Court ordered maintenance of status quo vis-à-vis possession of the subject matter. So far as the other CMP was concerned, the Court allowed the application and appointed Shri Aijaz Ahmad Mir, Registrar Judicial, High Court, Srinagar, as Commissioner for spot inspection in presence of the parties, with liberty to him to seek assistance of Revenue Authorities as well as local police while making the spot inspection. The Commissioner was directed to submit his report, with liberty to append rough sketch of the site and photographs to elucidate the report. 16. The report submitted by the Commissioner so appointed by the Court on the prayer of the petitioners would be referred to latter in this judgment. Presently, it needs to be mentioned that the aforesaid Adnan Manzoor Ahangar and Zahoor Ahmad Wani made an application, seeking arraignment as party respondents in the petition. This application was allowed by the Court by order dated 19.12.2014 and the two applicants were ordered to be impleaded as respondents 16 and 17 in the petition. 17. Both, the authorities of the Srinagar Municipal Corporation, viz. respondents 11, 12 & 13 and the newly added respondents, filed their objections/replies to the writ petition. 18. This application was allowed by the Court by order dated 19.12.2014 and the two applicants were ordered to be impleaded as respondents 16 and 17 in the petition. 17. Both, the authorities of the Srinagar Municipal Corporation, viz. respondents 11, 12 & 13 and the newly added respondents, filed their objections/replies to the writ petition. 18. In the reply filed on behalf of respondents 11, 12 & 13, a preliminary objection has been taken that disputed questions of fact have been raised by the petitioners in the petition which cannot be gone into in the extra ordinary writ jurisdiction. Therefore, the writ petition is not maintainable. On facts, while denying the claims of the petitioners, it is stated that in the year 1989, land measuring 44 kanals and 5 Marlas located under survey no.437 and other allied survey numbers came to be notified by the Government under Land Acquisition Act for public purpose, i.e., for construction of a slaughter house and other community facilities. Thereafter, the Assistant Commissioner, Srinagar, vide his letter no.498 dated 20.07.1992 asked the Tehsildar Srinagar to record the possession of land measuring 41 Kanals and 1 Marla under Survey nos.7 and 437 in Estate Batmaloo and Rampora, respectively, in favour of erstwhile Srinagar Municipal Committee, now Srinagar Municipal Corporation (referred to hereinafter, the Corporation). Some persons are stated to have challenged the aforesaid order of Assistant Commissioner, Srinagar, in a revision petition before the Financial Commissioner, who dismissed the same by order dated 27.02.1997. The fact of filing of a suit for perpetual injunction (by one of the petitioners) is admitted. It is further averred that out of the aforesaid land, the Corporation sold one kanal of land in favour of one Adnan Manzoor son of Manzoor Ahmad resident of Barzaulla, Srinagar, against payment of Rs.42,50,000/- on the basis of open auction in the year 2004 conducted pursuant to an auction notice published in press. It is further averred that the land is water logged (in local Revenue parlance ‘traag’) and grows pechi grass (i.e. bulrushes and reeds). Some portion of the land has come under the Central Scheme of widening of Srinagar-Baramulla road from 34’ width to 95’ width without any compensation. It is stated that pursuant to the decision of the Division Bench in LPA no.71/2005, the applications of the petitioners were considered by the authorities strictly in accordance with law and rejected. Some portion of the land has come under the Central Scheme of widening of Srinagar-Baramulla road from 34’ width to 95’ width without any compensation. It is stated that pursuant to the decision of the Division Bench in LPA no.71/2005, the applications of the petitioners were considered by the authorities strictly in accordance with law and rejected. It is specifically stated that the petitioners have no possession over the land in question and that it has been in the possession of the Corporation ever since it came to be handed over to them by the revenue authorities in the year 1992. 19. The private respondents 16 and 17 in their reply have stated that land measuring 90’x 60’under Survey no.437 in estate Rampora was acquired by them in an open auction against consideration amount of Rs.42,50,000/-. Alongwith numerous documents, these respondents have also placed on record copy of the auction notice, as published in a local daily, as well as the notification issued under endorsement no.163-68/SQ/89 dated 26.05.1989 issued by District Collector, Deputy Commissioner, Srinagar, notifying land measuring 44 Kanals, 5 Marlas and 58 Sft situated in Mouza Rampora comprised in Khas nos.399/400, 401, 946/402, 947/402, 403, 404, 951/405, 953/405, 955/405, 406, 407, 408, 432, 433, 434, 435, 436, 960/437, 438/437, 398 under Section 4 of the J&K Land Acquisition Act, Svt. 1990 to demonstrate that the land under survey nos. 960/437, 438/437 was acquired by the Government and handed over to the Corporation. 20. Now, coming to the other two writ petitions, being OWP no.1784/2012 and OWP no. 809/2013, filed individually by one of the above petitioners, namely, Gh. Rasool Mistri, in the first of these two petitions, the petitioner has sought direction for payment of compensation of Rs.15 lacs to him for the damages sustained by him at the hands of respondent no.2 to 9, and for directing the respondents to restore status-quo-ante on spot regarding the land under survey no.437/min. This petition has been filed stating that on 08.11.2012 respondents 2 to 9 criminally trespassed on the premises under his lawful occupation and possession situate in estate Rampora, Chattabal, Srinagar under Survey no.437/min and illegally and without any authority of law dismantled the shed erected by him on the land. 21. The respondents representing the Corporation in their reply, apart from reiterating their stand and facts pleaded by them in response to OWP no. 21. The respondents representing the Corporation in their reply, apart from reiterating their stand and facts pleaded by them in response to OWP no. 1536/2012, narrated above, have stated that during the pendency of civil revision no.61/2007 the petitioner tried to illegally encroach upon the land in question by constructing a shed on the said land, but such illegal action of the petitioner was foiled by the vigilant field staff of the Corporation. In para 4 of the reply, it is stated that the Assistant Commissioner, Nazool and Tehsildar, Srinagar have dishonestly and wrongly issued Annexure P-F and P-G to the writ petitioner in order to give illegal benefit to him and others. 22. The private respondents 10 and 11 in their reply have stated that respondent no.10 acquired the land measuring 90’x 60’comprised in Survey no.437 against a auction/consideration amount of Rs.42,50,000/- in an open auction conducted by the Corporation pursuant to a duly published notice in that behalf. It is further stated that since respondent no.10 had raised huge loan for depositing the amount with the Corporation, he entered into a partnership with respondent no.11, namely, M/s Sakoon Constructions Pvt. Ltd. for raising construction on the spot and for depositing the premium. Accordingly, at his instance, the allotment order was modified vide order dated 29.09.2009 to include M/s Sakoon Constructions Pvt. Ltd. as an allottee. 23. So far as the other writ petition, OWP no. 809/2013, is concerned, this petition calls in question order no.2340/2012 dated 10.11.2012 issued by Joint Commissioner (Adm), SMC, Srinagar. The petitioner has also prayed for a mandamus to direct the respondent to pay him compensation of Rs.50 lacs. In the aforesaid order the Joint Commissioner (Adm), SMC, Srinagar, has, inter alia, recorded that the possession of the land has been given to Mr. Adnan Manzoor on 08.11.2012 in accordance with the direction of the High Court as per the drawing and demarcation as shown in the site plan, and that the dispute of giving over proper possession of allotted land to him is settled. And further that said Mr. Adnan Manzoo shall have no claim against the Corporation on account of the land allotted to him. The writ petition has been filed on the ground that the impugned order is mala fide, illegal and arbitrary. And further that said Mr. Adnan Manzoo shall have no claim against the Corporation on account of the land allotted to him. The writ petition has been filed on the ground that the impugned order is mala fide, illegal and arbitrary. It is, however, admitted in the petition that the Adnan Manzoor Ahangar and another had filed a writ petition, OWP no.855/2011, which was disposed of by the Court on 14.12.2012 with direction to respondents to consider the application of the petitioners therein for grant of permission for raising construction strictly in accordance with rules and government orders occupying the field. 24. The respondents have filed their objections/reply contesting the writ petition on the facts narrated above. 25. Now I come to the writ petition, OWP no.1166/2016. This petition has been filed by the Corporation challenging order dated 07.07.2015 passed by the Financial Commissioner, Revenue, J&K, Srinagar, in the revision petition filed by twenty two persons against the order/communication no.498/LR dated 20.07.1992 of the Assistant Commissioner (R), Srinagar. The facts discernable from the documents appended with this petition and the averments made in the petition based on such documents give a wider dimension to the whole issue, so much so it transpires that actually land measuring 177 Kanals, comprised in three survey nos.07 (Batmaloo), 437 (Rampora) and 139 Bagh-i-Nandsingh, stand reflected in the name of Srinagar Municipality in revenue records. These facts are borne out by various communications, including communication no.ADDC/07/PS/1557 dated 29.2.2008 written by Addl. District Development Commissioner, Srinagar, to the Divisional Commissioner while submitting a report to the addressee with regard to the complaint received against the then Patwari, Halqa Bagh-i-Nandsingh, namely, Mohammad Altaf Khan, which alleged that he had made illegal entries favouring various persons in Kharief 1989 and that the same had been cancelled by the Director, Land Records. This communication shows that the Addl. District Development Commissioner had substantiated his report by as many as XI annexures, but those annexures have not been placed on record of this petition. I do not want to open the Pandora’s storage jar which may unleash evils and troubles of sorts and may roll the heads of many a person, including officers/officials of Revenue Department etc. I deem it appropriate to restrict to the legality or otherwise of the order impugned in this petition and in that connection to refer to the documents having bearing on that issue. 26. I deem it appropriate to restrict to the legality or otherwise of the order impugned in this petition and in that connection to refer to the documents having bearing on that issue. 26. It may be mentioned here that Survey no.437 is sometimes referred to as 437/min, 960/437 and 438/437. It is stated by the Corporation that this survey comprises of 24 Kanals and 11 Marlas. In one of the communications, being communication no.349-51/LA-AC dated 20.11.2001 addressed by Collector, Land Acquisition, Srinagar, to the Administrative Officer, Municipality, Srinagar, it is shown to be 24 kanals 18 marlas under survey no.960/437 and 438/437 in village Rampora. The Corporation states that only 11 Kanals and 10 Marlas of land in Survey no.437 were given in its possession. This land alongwith certain other patches, totalling to 44 Kanals, 5 Marlas and 58 Sft was notified for acquisition by the State in terms of notification issued under endorsement no.153-66/SQ/49 dated 26.05.1089. After acquisition proceedings were completed, possession slip was executed by and between Mr. Manzoor Ahmad, Naib Tehsildar, Chattabal and Mr. Ab. Salam Bhat, Administrator, Municipality on 15.07.1992 whereby the two officers certified having, respectively, handed over and taken over the possession of land measuring 41 Kanals, 1 marla under survey nos. 7 of Batmaloo and 437 of Rampora. Out of these 41 Kanals, 1 marla of land, the land comprised in survey no.07 is stated to be 29 Kanals and 11 Marlas, meaning thereby that land measuring 11 Kanals and 10 Marlas had been transferred to the Corporation from survey no.437. The issue is not whether it is 24 Kanals, 11 Marlas or 11 Kanals, 10 Marlas, transferred to the Corporation; the fact is that, admittedly, the land in survey n.437 on which the petitioners are laying their claim of possession has been transferred to the Corporation. The claim of the petitioners has to be looked into in that context. 27. The issue is not whether it is 24 Kanals, 11 Marlas or 11 Kanals, 10 Marlas, transferred to the Corporation; the fact is that, admittedly, the land in survey n.437 on which the petitioners are laying their claim of possession has been transferred to the Corporation. The claim of the petitioners has to be looked into in that context. 27. The impugned order, accordingly, apart from the above factual position is challenged firstly on the ground that the order has been passed at the back of the Corporation, since it has not been impleaded as a party respondent in the revision petition; secondly, and more importantly, it is stated that the revision petition as well as the impugned order proceeded on the assumption that the Assistant Commissioner, Srinagar, had transferred the land in question in favour of the Srinagar Municipality in terms of order no.498 dated 20.07.1992 which is not a fact. The reality is that the said land was handed over to the Srinagar Municipality after it was requisitioned and acquired by the Government in a due process of law; thirdly, it is stated that earlier also some persons had challenged the said communication dated 20.07.1992 of the Assistant Commissioner, Srinagar, in Revision no.02 of 1997, titled Mehda & 25 others v. A. C. Srinagar & anr., and the Financial Commissioner had returned a finding in terms of order dated 22.10.1997 that the order of the Assistant Commissioner could not be construed as one for transferring the land in question to the Srinagar Municipality which power obviously did not vest with him, but he was acting in accordance with the provisions of law to ensure that the revenue record depicted the position emerging as a consequence of proceedings under Land Acquisition Act of physical transfer of the land to Srinagar Municipality. It is also stated by the petitioner-Corporation that a strip of land has come under widening of Srinagar-Baramulla road. Besides, one kanal of land was sold by the Corporation in favour of one Mr. Annad Manzoor. So far as the land measuring 2 Kanals, 19 Marlas and 48 Sft in respect of which ownership rights stand granted in favour of Mst. Zainab Begum, it is stated that the said portion of land falls in the other part of the land measuring comprised in Survey no.437 which was not handed over to the Corporation. Annad Manzoor. So far as the land measuring 2 Kanals, 19 Marlas and 48 Sft in respect of which ownership rights stand granted in favour of Mst. Zainab Begum, it is stated that the said portion of land falls in the other part of the land measuring comprised in Survey no.437 which was not handed over to the Corporation. Same is stated to be true with the land in respect of which ownership rights were given to Mirza Maqsood Ali. It is reiterated that the petitioners are claiming possession of that part of the land under Survey no.437 which has been in possession of the Corporation. 28. The respondents in the writ petition in their reply have repeated their stand with specific plea that the Corporation has never been in possession of the land. 29. I heard learned counsel for the parties, perused the material brought on record and the pleadings of the parties and have considered the matter. During the course of their arguments, the learned counsels for the parties stuck to their pleadings and stand taken by them in their respective returns. 30. It is to be borne in mind that the private-petitioners fundamentally are aggrieved of order no.DCS/RD/Roshni/76-83 dated 26.07.2012, whereby the Deputy Commissioner, Srinagar, has rejected their applications for conferment of ownership rights over land measuring 7 Kanals comprised in Survey no.437/min situated in Estate Rampora, Chattabal, Srinagar. They have also sought some consequential reliefs. Their challenge to the aforesaid order is founded on their case that they have been in settled possession of the said land measuring 7 Kanals comprised in Survey no.437 situated in Estate Rampora, Chattabal, Srinagar. They describe the said land as ‘State land’. They claim such possession on the basis of certain relinquishment deeds purported to have been executed in their favour by some erstwhile possessors of the said land. This stand is sought to be buttressed by the reports dated 02.11.2004 and 01.12.2004 submitted to the Deputy Commissioner, Srinagar, by the Assistant Commissioner, Nazool, Srinagar, and Tehsildar, Srinagar, respectively. Let the above two communications be first examined. 31. The first of these two communications, bearing no.AC-1272/N dated 02.11.2004 has been addressed by Assistant Commissioner, Nazool, Srinagar to the Deputy Commissioner, Srinagar, concerning the application of one of the present petitioners, Ghulam Rasool Mistri. Let the above two communications be first examined. 31. The first of these two communications, bearing no.AC-1272/N dated 02.11.2004 has been addressed by Assistant Commissioner, Nazool, Srinagar to the Deputy Commissioner, Srinagar, concerning the application of one of the present petitioners, Ghulam Rasool Mistri. The relevant portion of this communication is extracted below: “…The Tehsildar Srinagar has furnished his clarification report vide his letter No.104/The/Sgr/MMC dated 19.10.2004 (copy enclosed) which reveals that the land in question under survey No.437 as per Girdawari 92 was given to Srinagar Municipality by the orders of the then Assistant Commissioner (R). But the said order was challenged by the occupants before Divisional Commissioner Kashmir and the Div. Comm (K) set aside the orders of the then Asstt. Commissioner Revenue on 15.2.97 and the position of the land was kept as it was before and the said order was entered in the Girdawari and thus no land is recorded in the name (of) Municipality and neither there is any occupation of SMC on the said land, as the land in question is under the occupation of above mentioned occupants at present.” The above report contained in the communication is wholly contrary to the facts that have come on record. The Assistant Commissioner seems to have been totally oblivious of the fact that the said order passed by the Divisional Commissioner stood set aside by the Financial Commissioner by order dated 22.10.1997 passed in Revision no.2 of 1997 titled Mehda & ors. v. A. C. Srinagar, recording a clear finding that, at the site, the Corporation was in possession of 11 Kanals and 10 Marlas of land under Survey no.437 and 29 Kanals under Survey no.7. 32. So far as the other communication, bearing no.215/TehSgr/MMB dated 01.12.2004 written by Tehsildar, Srinagar, to the Deputy Commissioner, Srinagar, is concerned, the statements made therein in relation to the petitioners herein, cannot have any more or greater value than the report of the Assistant Commissioner contained in his aforesaid letter, because these petitioners claim the possession of that patch of the land under survey no.437 which, admittedly, stands allotted to the Corporation. 33. Besides, it is the positive case of the petitioners and their vehement stand that the land in question under their occupation is State land. ‘State land’ in context of the Act has a specific connotation. 33. Besides, it is the positive case of the petitioners and their vehement stand that the land in question under their occupation is State land. ‘State land’ in context of the Act has a specific connotation. Reference in this connection may be made to Section 2(h) of the Act which defines ‘State land’ as meaning the land recorded as such in the Revenue Records and includes any land which has escheated to the Government under the provisions of any law for the time being in force in the State, but does not include any Government or State land mentioned in Section 3 of the Act. Clauses (b) and (c) of Section 3 of the Act say that its provisions shall not apply to such State land as is held by any Government Department or institution under the control of the Government or is earmarked for a specific purpose in any Master Plan. 34. There is overwhelming evidence in the shape of documents brought on record of these clubbed writ petitions which substantiates that land measuring 11 Kanals 10 Marlas has been transferred to the Corporation. In his order dated 22.10.1997, passed in Revision no.2 of 1997 titled Mehda & ors. v. A. C. Srinagar, the Financial Commissioner has recorded a crystal clear finding that, at the site, the Corporation is in possession of 11 Kanals and 10 Marlas of land under Survey no.437. This refers to the date of passing of the said order. Though there are certain documents which say that land measuring 24 Kanals 11 Marlas under survey no.437 stand in the name of the Corporation. Be that as it may- whether it be 24 Kanals 11 Marlas or 11 Kanals and 10 Marlas, the fact remains that the land in respect of which the petitioners claim possession had been transferred to the Corporation and has been held by it eversince. It, therefore, does not fall within the definition of the “State land” in context of the provisions of the Act. 35. It may further be observed here that the evidence that has come on record and the replies filed by the respondents, as narrated above, make the things somewhat fairly clear about the nature of the claim of the petitioners. It, therefore, does not fall within the definition of the “State land” in context of the provisions of the Act. 35. It may further be observed here that the evidence that has come on record and the replies filed by the respondents, as narrated above, make the things somewhat fairly clear about the nature of the claim of the petitioners. It becomes manifest that the land measuring 44 Kanals, 5 Marlas and 58 Sft comprised in various survey nos., including survey no.437 had been notified and acquired for establishment of a slaughter house and other community facilities and that, later, on 16.07.1992, Naib Tehsildar, Chattabal handed over the possession of land measuring 41 Kanals and 1 Marlas comprised in survey nos. 7 of Batmaloo and 437 of Rampora to the Administrator Municipality and the two executed a possession slip in that regard which has been placed on record of writ petition, OWP no.1166/2016. The Assistant Commissioner, Srinagar, vide his letter no.498 dated 20.07.1992, as held by the Financial Commissioner did not transfer the land, as he did not have any such power. He was only acting in accordance with law to ensure that the revenue record depicted the position emerging as a consequence of the proceedings concluded under Land Acquisition Act and in that behalf he had asked the Tehsildar Srinagar to record the possession of land measuring 41 Kanals and 1 Marla under Survey nos.7 and 437 in estate Batmaloo and Rampora in the name of the Srinagar Municipal Committee. 36. The impugned order issued by the Deputy Commissioner states that (as per Jamabandi 1993-94) the land in question, i.e., 24 Kanals and 11 marlas falling under survey no.437 located at Rampora, Srinagar stands recorded in the name of Srinagar Municipal Corporation on the directions of Assistant Commissioner, Revenue, Srinagar dated 20.07.1992 and that the land has been earmarked for public purpose, i.e., for setting up of wholesale fish market. The order does not say that the land was transferred to the Corporation by the Assistant Commissioner. It is also stated therein that the land in question is located on the vital Srinagar-Baramulla National Highway and could be required for public purpose in future. The petitioners themselves have placed on record of the writ petition the communication of Assistant Commissioner (R), Srinagar, to the /address of the Tehsildar, Srinagar. It is also stated therein that the land in question is located on the vital Srinagar-Baramulla National Highway and could be required for public purpose in future. The petitioners themselves have placed on record of the writ petition the communication of Assistant Commissioner (R), Srinagar, to the /address of the Tehsildar, Srinagar. Its body reads: “Possession of land measuring 41 Kanals 1 Marla under survey Nos. 7 and 437 of estate Batmaloo and Rampora, respectively has been handed over to Srinagar Municipality. You are required to reflect the same in the revenue records.” This shows that possession of the land comprised in two survey nos. viz. survey no.7 and 437 of two estates, Batmaloo and Rampora, stood handed over to the Corporation on the date of issue of the aforesaid communication. This negates the case of the petitioners that they are in possession of the land or that the land was not in possession of the Corporation. Possession of a Department of the Government or an institution can be established only by entries in that regard made in the relevant records. Any Department or Institution is not expected to actually be present on the land to establish its possession. 37. It may also be relevant to observe here that the report of the Commissioner, appointed by the Court in terms of order dated 15.11.2012 at the instance of none other than the petitioners makes the things further clearer. It is extracted below: “On the spot it was found that the major portion of the land in question is marshy with growing grass in the ‘Petchi’. However, earth filling has taken place recently on a portion of land in the South-East side. The earth filling, as per the information gathered on spot has been done by the above allotee Mr. Adnan Manzoor and on some portion by SMC. On the spot it was also found that SMC has placed yellow coloured garbage containers almost towards south-west corner of this earth filled portion of land. These containers seemed to be condemned ones. The petitioners on the spot claimed that these containers have been placed only a couple of days ago. However, it was reported by Joint Commissioner, SMC that these containers have been placed by SMC as this place has been selected for dumping of Garbage. These containers seemed to be condemned ones. The petitioners on the spot claimed that these containers have been placed only a couple of days ago. However, it was reported by Joint Commissioner, SMC that these containers have been placed by SMC as this place has been selected for dumping of Garbage. On the spot the petitioners claim that they had erected wooden sheds on the subject matter of the lis, which were removed by the SMC authorities with the aid and assistance of the Police. However, at the time of the inspection of the spot, no such shed or any construction material in the nature of wood etc. was found. In this connection SHO concerned apprised the undersigned that the Municipal authorities had requisitioned their aid and assistance so as to achieve the purpose of handing over the possession of land to Municipal authorities in a peaceful manner as, according to them building material in the nature of wood etc. had been dumped on the spot. SHO further apprised the undersigned that a case came to be registered against the petitioner namely Gulam Rasool Mistry on the complaint of SMC. At the time of spot inspection no structure of whatever nature was found existing on spot. All the concerned parties were apprised of the Hon’ble Court order and SHO was directed to ensure strict compliance of the Hon’ble Court order.” This report made by the Commissioner, appointed at the instance of none other than the petitioners themselves, apart from belying the petitioners’ claims of having been and/or being in possession of any portion of the land comprised in survey no.437 supports the stand taken by the respondents. The petitioners have not, at any stage, objected to the report of the Commissioner. 38. It may be observed here that even if the petitioners or any one of them had been successful in illegally raising a shed on the land in question belong to the Corporation, that would not entitle them or any one of them to claim possession of the land, especially to claim ownership rights under the provisions of the Act. This can be termed as a classic example of utter disobedience to law and the criminal-mindedness of such a person. 39. So far as the contention of the petitioners that they were similarly placed as Mst. This can be termed as a classic example of utter disobedience to law and the criminal-mindedness of such a person. 39. So far as the contention of the petitioners that they were similarly placed as Mst. Zainab Begum and Mirza Maqsood Ali, appellants 3 and 4 in LPA no.71/2005 and their claim to similar treatment are concerned, it is effectively explained on behalf of the Corporation in its writ petition, stating that the such ownership rights have been conferred on them vis-à-vis that portion of the parcel of land under survey no.437 possession of which had not been handed over to the Corporation. It is reiterated that the petitioners in first three of these four writ petitions are claiming possession over that portion of the land which forms part of the land possession of which is held by the Corporation. Going by the documents placed on record, there seems to be a strong plausibility in this submission made on behalf of the Corporation. In that view, the petitioners cannot claim parity with Mst. Zainab Begum and Mirza Maqsood Ali. 40. Obviously, as the petitioners alleged interference by the Corporation in their possession, the claim of the petitioners herein is vis-à-vis the land that had been given in possession of the Corporation, Naturally, the Corporation was within their rights to secure their land and, in that connection, to ward off any illegal activity resorted to by any person. The above being the factual position, the petitioners cannot also plead discrimination on that count. Furthermore, since the petitioners have been claiming the land which stood, admittedly, transferred to the Corporation, the petitioners cannot claim violation of any right, muchless their right to property vis-à-vis the land in question. 41. Reliance by the petitioners on the order dated 07.07.2015 passed by the Financial Commissioner in File no.3/FC-A titled Gul Sheikh & ors. v. Assistant Commissioner & anor, is wholly misplaced and untenable. As mentioned earlier this order is the subject matter of challenge in the writ petition, OWP no.1166/2016, filed by the Corporation. 41. Reliance by the petitioners on the order dated 07.07.2015 passed by the Financial Commissioner in File no.3/FC-A titled Gul Sheikh & ors. v. Assistant Commissioner & anor, is wholly misplaced and untenable. As mentioned earlier this order is the subject matter of challenge in the writ petition, OWP no.1166/2016, filed by the Corporation. I do not need to say too much about this order, for, the revision petition as well as the order proceeded on a wholly wrong assumption that land measuring 41 Kanals and 1 Marla comprised in Survey no.437 of estate Rampora, Chattabal, Srinagar, was transferred to the Corporation by the Assistant Commissioner, Revenue, Srinagar, who did not have the power to do so. Before proceeding further, I deem it appropriate to quote the findings recorded by the Financial Commissioner in this order (which is impugned in OWP no.1166/2016). In this regard paras 6 onwards of the order are relevant and the same are quoted hereunder: “6. I have perused the record available on the file and considered the written submissions of both sides. By virtue of the impugned order, land measuring 41 Kanal 01 marla under survey No.78 (sic), 437 of estate Batmaloo and Rampora respectively has been ordered to be recorded in favour of SMC for the reason that possession of the said land had been handed over to the said Municipality. In the record, I have come across a record note of meeting held under the chairmanship of Divisional Commissioner, Kashmir on 23.06.2006, called in pursuance of the directions of the Hon’ble High Court of J&K, Srinagar passed in a writ petition under OWP No.145/06 titled ‘Mirza Maqsood Ali V/S State & Ors.”. It is manifest from the record note that the total land under Khasra No.437 is 24 Kanal 18 marlas situate in estate Rampora. Earlier on 03.05.2006, it was decided that Tehsildar Nazool/Tehsildar Srinagar shall have a joint demarcation and submit a detailed report before the committee. The report is said to have been submitted, the details of which are reproduced in the said meeting note. With regard to an area measuring 11 kanal 10 marlas under Khasra No.437 in estate Rampora, Srinagar, it is stated that the same is claimed by the Srinagar Municipal Corporation as per Assistant Commissioner, Srinagar order No.498/SQ dated 20.07.1992. The report is said to have been submitted, the details of which are reproduced in the said meeting note. With regard to an area measuring 11 kanal 10 marlas under Khasra No.437 in estate Rampora, Srinagar, it is stated that the same is claimed by the Srinagar Municipal Corporation as per Assistant Commissioner, Srinagar order No.498/SQ dated 20.07.1992. However, on spot this land as per the said Tehsildar is under the illegal possession of several persons. Details of illegal occupants are given out in the said meeting note. It is also observed that Gull Sheikh & ors have passed illegal possession of land measuring 01 kanal 10 marlas, 04 kanals 02 marlas, 02 kanal 17 marlas, 01 kanal 04 marlas, 01 kanal 15½ marlas (total 11 kanal 1½ marlas) in favour of Abdul Hamid Dandroo & ors., and the transaction has been made quite on the heels of the enactment of the J&K State Lands (Vesting Of Ownership to the Occupants) Act, 2002. Srinagar Municipal Committee has issued public notices on 28.11.2002 for safeguarding the interests of Srinagar Municipal Corporation. From the above discussion, it is evident that the SMC is not having the actual possession of the land in question. It is only recorded in occupation of the said land in relevant revenue records. However, petitioners too don’t appear to be in any legal possession of the land in question. Under J&K State Lands (vesting of ownership rights to the occupants) Act, 2002, illegal occupants of the State land may be entitled to ownership rights after fulfilling certain formalities in this regard. There is nothing on the file, however, to suggest as to whether the petitioners have even applied for ownership rights under the said Act within the timelines prescribed under the said Act.” (Underlining supplied) It is reiterated here that the Corporation could not be expected to be in actual possession of the land in question. The recorded occupation is enough to establish its possession. The Financial Commissioner, having recorded the aforesaid findings, has proceeded to make the following direction: “In this background, the revision petition is disposed of with the direction that the concerned authorities shall dispose of the cases of the petitioners under the J&K State (Vesting of Ownership Rights to the occupants) Act, 2002 provided they had applied in time and fulfil the other conditions as prescribed under the Act. Otherwise in no way the State land shall be allowed to be encroached upon. This order shall, however, be subject to the outcome of the civil suits and writ petitions pending before the civil courts and the Hon’ble High Court respectively. Interim directions, if any, granted in the matter are vacated...” 42. The order on the face of it, having been passed behind the back or the Corporation, without it having been impleaded as a party and without it having been given an opportunity of hearing, deserves to be set aside. But then the point remains that in light of the fact that another revision petition, much earlier in point of time, involving the same communication, has been dismissed by the Financial Commissioner, whether it would be legally of any consequence to remand the matter to the Financial Commissioner for a fresh hearing in Revision file no.3/FC-AP. In this regard it would be appropriate to refer to the findings recorded by the Financial Commissioner while deciding the earlier revision petition no. 2 of 1997 dated 22.10.1997. Therein, the Divisional commissioner, Kashmir, had made a reference recommending that the order passed by the Assistant Commissioner, Srinagar, vide letter no.498 dated 20.07.1992 asking the Tehsildar Srinagar to record the possession of land measuring 29 Kanals 11 Marlas comprised in Survey no.7 of estate Batmaloo be set aside, as being without jurisdiction. The Financial Commissioner rejected the Reference by order dated 22.10.1997, recording the following finding: “I have considered the arguments of the counsel for the parties and perused the record of the case. It has transpired from the records that Khasra No.7 situate in Batamaloo measures 29 Kanals 11 marlas. It is also apparent that the proceedings under Law Acquisition Act have been initiated in respect of this very land for construction of slaughter house. The notification under Section 4 of the Land Acquisition Act was issued by the Collector/Dy Commissioner Srinagar vide his No.137-44/SO 89 dated 26.06.1989. This was followed by the notification No.242 under Section 6 and 7 of the Land Acquisition Act issued by the Revenue Secretary. Vide notification No.243 of 1989 dated 1`2.7.1989, the order under Section 17 of Land Acquisition Act was issued for handing over the possession of land subject to the payment of compensation. This was followed by the notification No.242 under Section 6 and 7 of the Land Acquisition Act issued by the Revenue Secretary. Vide notification No.243 of 1989 dated 1`2.7.1989, the order under Section 17 of Land Acquisition Act was issued for handing over the possession of land subject to the payment of compensation. Acquittance roll has also been produced which indicated that an amount of Rs.26,666/- has been paid for an area measuring 1 kanal 1 marla and 3 sarasai. As a culmination of these proceedings, the possession was handed over in respect of Khasra No.7 as well as Khasra No.437 of Rampora. Both the Administrator Municipality and Naib Tehsildar Chattabal have signed in token of having taken over/handed over the possession of the land. This was done on 15th July, 1992. As a logical corollary to that the Assistant Commissioner, Revenue directed the Tehsildar vide his order dated 20th July, 1992 which is impugned, to manifest the position of formal handing over of the possession of land, in revenue records. From the above expatiation, it is quite apparent that the proceedings have been initiated strictly in accordance with the Land Acquisition Act in respect of Khasra No.7 and land has been formally acquired. In face of the legal proceedings having been carried out it does not lie in the mouth of the petitioners to state without any evidence to the contrary that the land has not been acquired. The order of the Assistant Commissioner cannot be construed as one for transferring the land in question to the Srinagar Municipality, which power obviously does not vest with him. But he was acting in accordance with the provisions of law to ensure that the Revenue record depicted the position emerging as a consequence of proceedings under Land Acquisition Act, of physical transfer of the land to Srinagar Municipality. As such the observations made by the Divisional Commissioner that Asstt. Commissioner has acted without jurisdiction or that the Dy. Commissioner is to be asked to explain his position, are without any basis and are seemingly misplaced. The procedural aspect as followed by the Collector/AC(R) in accordance with the provisions of law, have not been fully appreciated and perceived by the Divisional Commissioner. Asstt. Commissioner has not arrogated to himself any powers, which did not vest with him nor did he act without jurisdiction.” 43. The procedural aspect as followed by the Collector/AC(R) in accordance with the provisions of law, have not been fully appreciated and perceived by the Divisional Commissioner. Asstt. Commissioner has not arrogated to himself any powers, which did not vest with him nor did he act without jurisdiction.” 43. The aforesaid order passed by the Financial Commissioner is clear in its terms and wholly based on facts and law. It does not require any further analysis or expatiation. However, it needs to be mentioned that so far as the land comprised in Survey no.437 is concerned, it was similarly notified alongwith land comprised in other survey numbers of estate Rampora, mentioned earlier, totalling 44 Kanals, 5 Marlas and 58 Sft., and acquired by the Government. However, it has come on record that possession of only 41 Kanals and 1 Marla of land comprised in Survey nos. 7 of Batmaloo and 437 of Rampora was handed over to the Corporation. Be that as it may, the subsequent proceedings on the same ground against the communication of the Assistant Commissioner (R) could not have been taken and, in any case, the Financial Commissioner in the subsequent revision ought not to have passed an order in conflict with the earlier order, which, as mentioned above, was well reasoned, based on facts and had attained finality. The impugned order has also been issued without hearing the Corporation and on a wrong assumption that the transfer of land was made by the Assistant Commissioner, Revenue. Be that as it may, I am of the considered view that even if the matter is remanded for any reason, whatsoever, it would be a futile exercise, for, the earlier order passed by the Financial Commissioner is based on facts and record and has attained finality. 44. In regard to Writ petition, OWP no.1536/2012, it may also be observed here that one of the prayers made therein by the petitioners is to direct the respondents not to cause interference with their settled possession over the land. At the same time it is averred that one of the petitioners’ namely, Ghulam Rasool Mistri, has filed a suit for perpetual injunction in the Civil Court on the same subject matter. If that be so, the writ petition, at least on his behalf, would not lie. At the same time it is averred that one of the petitioners’ namely, Ghulam Rasool Mistri, has filed a suit for perpetual injunction in the Civil Court on the same subject matter. If that be so, the writ petition, at least on his behalf, would not lie. In any case, the petitioners cannot claim possession against the Corporation, for, there is, in fact, none with them and also could not have been. 45. For all what has been discussed above, there is no merit in the writ petitions OWP no.1536/2012, OWP no.1784/2012 and OWP no. 809/2013. The same, therefore, merit dismissal and are so dismissed alongwith connected CMPs, vacating the interim directions, if any subsisting. So far as the writ petition, OWP no.1166/2016 is concerned, it is allowed and the impugned order dated 07.07.2015 passed by the Financial Commissioner in File no.3/FC-AP titled Gul Sheikh and 21 others v Assistant Commissioner (Rev), Srinagar, & anr., is set aside. The connected MPs are also disposed of, and the interim direction, if any, subsisting shall abide by the final decision in the petition, as above. 46. No order as to costs.