Srinagar Municipal Corporation vs Bashir Ahmad Thokar

Mr. Muzaffar Hussain Attar, J. (Oral) - Order dated 18th May 2015 is taken note of.

From the record of this case, it appears that land measuring 12 kanals and 13 marlas covered by Survey No's 1125 (11 kanals and 01 maria) and

Survey No. 1126 (01 kanal and 12 marlas) was recorded in the name of Srinagar Municipal Corporation in the year 1981 in the process of

conducting Sehat Indraj Girdawari, by passing order on mutation no. 1244 dated 21st December, 1981. The Divisional Commissioner, Kashmir in

his order dated 7th April, 2014 has stated that the possession of the land was taken over by the Srinagar Municipal Corporation and the said land

has been acquired for four laning of National Highway as has been reported to him by Collector Land Acquisition PWD Srinagar.

The Divisional Commissioner, Kashmir in Revision Petition made recommendations for setting-aside the order on mutation no. 1244, which has

been accepted by the Financial Commissioner vide his order dated 16th October, 2014 by providing that the order on mutation no. 1244 is set-

aside to the extent of land measuring 11 Kanals and 01 Marla covered by Survey No. 1125 situated at Lasjan and the private respondents have

been directed to surrender possession of Kahcharai land measuring 12 kanals 18 marlas on 166 sfts covered by Survey No. 1088 of estate

Lasjan.

Since huge public interest is involved in this petition, before proceeding further in the matter, at this stage, it is deemed appropriate to direct as

under :

The Divisional Commissioner Kashmir is directed to constitute team of Revenue Officers which shall be headed by a Revenue Officer of the rank

of Additional Deputy Commissioner. All the officers including the head of the team shall be Revenue Law knowing. The Committee be constituted

within three days time from the date copy of this order is served. The Committee to enquire into the matter and report about the correct position

obtaining in respect of the issue raised in this petition and briefly summarized in this order. The Committee after considering and hearing the parties

which would include consideration of any document/material which they may produce, and if need arises visit the spot and submit report within ten

days time to the Divisional Commissioner, Kashmir. The Divisional Commissioner Kashmir to submit his report to the Court. The entire exercise

shall be concluded within three weeks from the date copy of this order is served on Divisional Commissioner, Kashmir.

List in the week commencing from 8th June, 2015.

Registry to serve copy of this order on Divisional Commissioner Kashmir forthwith.

The Divisional Commissioner submitted the report which was send to him by Additional Deputy Commissioner Srinagar on 1st July, 2015. The

report is taken note of.

Report in respect of land acquired by NHAI for construction of 4-laning.

In OWP No. 05/2015 titled Srinagar Municipal Corporation v. Bashir Ahmad Thokur and Ors.

Hon'ble High Court of Jammu and Kashmir Srinagar's Order dated:

Your office Order No. Divcom/RA-SMA/12/2015 dated: 20-05-2015 and 16-06-2015.

Sir,

Apropos to the subject and references captioned supra, the committee before visiting the spot issued notices to both the parties. Shri Farooq

Ahmad Bhat (Chief Revenue Officer and Shri Imtiyaz Ahmad Sheikh (Assistant Revenue Officer) on behalf of the petitioners and 09 number of

respondents attended in person, statements of respondents have been recorded which are appended hereto for kind perusal. The officers on behalf

of the petitioners sought time to produce documentary evidence as to their title, claim and possession but did not chose to produce any

documentary evidence till date. The respondents relied upon the entries on the revenue records and the reports submitted by the revenue officials

from time to time whatsoever to be treated as the documentary evidence for their title and possession.

The parties were again put to notice for spot visit of the team on 22-06-2015. It may be apt to submit here that in order to reach to the rightful

conclusion copies of records viz shajra, extracts of annual records, ROR, copies of mutations were obtained from the Settlement Record Rooms,

Kashmir, Srinagar. The above mentioned revenue officer of Srinagar Municipal Corporation on behalf of the petitioners and some respondents

were present in addition, the subordinate revenue field staff along with the records were present on spot. The persons/officials present on behalf of

respective parties were heard at length and the record available with the revenue authorities and the ones obtained from the Record Rooms were

carefully perused in the perspective of the contention advanced by the parties. After perusal of records the spot was examined in the parlance of

the revenue records including the shajra prepared for acquisition of four laning. It has been found that the alignment of the four laning under

construction has been marked through Survey No. 1125 and 1088. In the earlier reports where from the revision of mutation No. 1244 originated,

the land measuring 12 Kanal 13 Marla under survey No. 1125 was shown to belong to the respondents by virtue of mutation No. 1044 attested

on the basis of a sale deed dated: 03-04-1970.

While as the land in question falling under survey No. 1125 measuring 12 Kanal 13 Marlas under acquisition also includes an area of 4 Kanal 09

Marla (totalling 17 Kanal and 02 Marla) is recorded as state land under the possession of Municipal Corporation by virtue of mutation No. 1244

which is under their physical possession in the shape of ""Banjar Qadeem"" reflected in the records prepared during the current Settlement Operation

under survey No. 1469. Obviously the area measuring 12 Kanal 13 Marlas under survey No. 1125 has been acquired by the National Highway

Authority of India out of the possession of Srinagar Municipal Corporation. On the other hand an area measuring 12 Kanal 13 Marlas coming

under acquisition of four laning out of survey No. 1088 which was previously recorded as ""Shamilat Deh Mehfooz Kahcharai"" has been recorded

in the proprietorship of Gh. Mohammad and others in exchange of their proprietary land under survey No. 1087 by virtue of mutation No. 1230.

This portion of land under acquisition of four laning has been reflected in the current settlement records under survey No's 1344/1, 1375/1. It shall

however be apt to submit that mutation No. 1230 for exchange has been attested for an area of 63 Kanals and 04 Marlas on 24-09-1980.

Extracts of the revenue records including the copies of mutations referred herein above are enclosed hereto for favour of kind perusal.

In terms of order on mutation No. 1244 dated 21st December, 1981 land measuring 12 Kanals and 13 Marlas covered by survey No's

1125(11 Kanals and 1 Marla) and survey No. 1126 (1 Kanal and 12 Marlas) was recorded in the name of Srinagar Municipal Corporation. This

land as per communication of the Divisional Commissioner dated 7th April, 2014 stands acquired for four laning of National Highway. The

Divisional Commissioner on the petition of the private respondents made recommendations for setting aside the order on mutation No. 1244,

which was accepted by the Financial Commissioner vide its Order dated 16th October, 2014. In the said order the Financial Commissioner

provided that order on mutation No. 1244 is set aside to the extent of land measuring 11 Kanals and 01 Marlas covered by Survey No. 1125

situated at Lasjan. In terms of the same order private respondents were directed to surrender possession of Kahcharai land measuring 12 Kanals

18 Marlas and 166 Sfts covered by survey No. 1088 of estate Lasjan.

The Committee in support has submitted that the alignment of the four laning under construction has been marked through survey No's. 1125

and 1088.

It is also reported that in terms of the earlier reports where from the revision of mutation No. 1244 originated, the land measuring 12 Kanals and

13 Marlas under survey No. 1125 was shown to be belonging to respondents by virtue of mutation No. 1044 attested on the basis of sale deed

dated 3rd April, 1970.

It is further reported that the land falling under survey No. 1125 measuring 13 Marlas under acquisition also includes an area of 4 Kanals and 09

Marlas, total in 17 Kanals and 2 Marlas stands recorded as state land under the possession of Municipal Corporation by virtue of mutation No.

1244 which is under their physical possession in the shape of ""Banjar Qadeem"".

It is also stated in the report of the officers that the record prepared during the current settlement operation shows it to be survey No. 1469.

Finding has been recorded by the team of officers in the report that an area measuring 12 Kanals and 13 Marlas under survey No. 1125 has been

acquired by the National Highway Authority of India from out of the possession of Srinagar Municipal Corporation.

It is also stated in the report that an area measuring 12 Kanals and 13 Marlas coming in the acquisition of four laning out of survey No. 1088

which was previously recorded as ""Shamilat Deh Mehfooz Kahcharai"" has been recorded in the proprietorship of Ghulam Mohammad and others

and in exchange of their proprietary land under survey No. 1087 by virtue of order on mutation No. 1230.

The aforesaid report clearly shows that the recommendation made on the revision petition of the private respondents by the Divisional

Commissioner which has been accepted by the Financial Commissioner is factually wrong and is rendered illegal.

The impugned order dated 7th April, 2014 passed by Divisional Commissioner and order dated 16th October, 2014 passed by Financial

Commissioner are set aside. Order on mutation No. 1244 dated 21st December, 1981 shall stand restored.

At this stage Mr. B. A. Bashir, learned counsel for respondents submitted that in view of the report of the Committee of officers and the

response filed by him to the said report it has become clear that land measuring 12 Kanal 13 Marlas and 16 Sfts belonging to the private

respondents from out of survey No. 1088 has been acquired.

Learned counsel also submitted that the award amount has been deposited with the Registrar Judicial of this Court.

Learned counsel accordingly made request that Registrar Judicial may be directed to release the award amount in favour of the private

respondents in terms of the statement annexed with the response filed by private respondents.

In view of the submission made by Mr. Bashir, learned counsel for the respondents and in the interest of justice, it is deemed appropriate to

direct the concerned Collector to appear before the Court for clearing the position projected by Mr. Bashir. By adopting this mode, as submitted

by learned counsel, the private respondents would be saved from undergoing further mental agony and justice will be meted out to them.

The Collector (PWD) Assistant Commissioner (Revenue) Srinagar to appear along with the record of the case on Wednesday i.e. 30-09-

2015.

List on 30th September, 2015.