Jammu & Kashmir High Court - Srinagar Bench
2025:Jklhc-Sgr:303-Db vs State Of J&K And Ors on 11 November, 2025
Author: Sindhu Sharma
Bench: Sindhu Sharma
2025:JKLHC-SGR:303-DB
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Case No. LPAOW No. 68/2018
c/w LPAOW No. 116/2018,
& LPAOW No. 118/2018
Reserved on: 16.10.2025
Pronounced on: 11.11.2025
Uploaded on: 11.11.2025
Whether the operative part or
full judgment is pronounced
Ghulam Rasool Mistri
.....Petitioner(s)
Through: Mr. Syed Mohtasim, Advocate &
Saqib Fayaz Khan, Advocate vice
Mr. Syed Manzoor, Advocate
Vs
State of J&K and ors.
..... Respondent(s)
Through: Mr. Bikramandeep Singh, Dy. A.G for R-1
to 7
Mr. M. Y Bhat, Sr. Advocate with
Mr. Hamja Prince, Advocate for R-8 & 9
CORAM: HON'BLE MRS.JUSTICE SINDHU SHARMA, JUDGE
HON'BLE MR. JUSTICE SHAHZAD AZEEM, JUDGE
(JUDGMENT)
Shahzad Azeem-J
1. These intra Court Appeals have been directed against
the common judgment dated, July 24, 2018 passed by the
learned Single Judge ("the writ Court") in OWP No. 809/2013
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titled Ghulam Rasool Mistri Vs. State of J&K and ors; OWP No.
1784/2012 titled Ghulam Rasool Mistri Vs. State of J&K and ors;
and OWP No. 1166/2016 titled Srinagar Municipal Corporation
Vs. Gulla Sheikh and ors., respectively. The writ Court, vide
impugned judgment has dismissed the writ petitions being; OWP
Nos. 809/2013 & 1784/2012, whereas, OWP No. 1166/2016 was
allowed, thereby set aside the order dated 07.07.2015 passed by
the Financial Commissioner in File No. 3/FC-AP, titled Gul Sheikh
and others vs. Assistant Commissioner (Revenue), Srinagar and
another.
2. At the outset, it is sine qua non to note that by virtue of
the judgment under challenge four writ petitions came to be
adjudicated by way of common judgment dated, July 24, 2018,
however, the appeal bearing LPAOW No. 92/2018, wherein one of
the four writ petitions bearing OWP No. 1536/2012 titled Abdul
Hamid Dandroo and others v. State of J&K and others was the
subject matter of challenge, and same vide order dated November
20, 2024, by a Co-ordinate Bench was dismissed.
3. On wading through the paper-book, necessity is felt for
compartmentalization of these LPAs as same will shed light as to
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how litigation has embroiled to the multiplicity and re-litigation,
in an attempt to infuse the life into a dead horse, which of course
is impossible.
4. Now, coming to the LPAOW No. 68/2018 arising out of
OWP No. 809/2013, titled Ghulam Rasool Mistri Vs. State of J&K
and ors. and LPAOW No. 116/2018 arising out of OWP
No. 1784/2012, titled Ghulam Rasool Mistri Vs. State of J&K and
ors, respectively, these LPAs are filed by same appellant, namely;
Ghulam Rasool Mistri and both appeals in essence, rest on
similar issues of facts and law, rather, it would be proper to say
that soul of both the appeals lies in one skeleton. Appellant
herein is also one of the appellants in third appeal bearing
LPAOW No.118/2018, titled Abdul Hamid Dandra and ors. Vs.
Srinagar Municipal Corporation and others and besides this he
was also party in LPAOW No. 92/2018 titled Abdul Hamid
Dandroo and ors. Vs. State of J&K and others arising from
OWP No. 1536/2012, that stood already dismissed vide judgment
dated November 20, 2024 passed by a Co-ordinate Bench.
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5. The appellants in LPAOW No. 92/2018, arisen out of
OWP No. 1536/2012, (already dismissed) and LPAOW No.
118/2018 (arising from OWP No.1166/2016) are the same.
6. Across the board appellants have continuously asserted
their claim to the entitlement of the vesting of ownership rights
over the land in question before different forums as they being in
possession of the respective patches of the State lands by virtue
of relinquishment deeds and thus are entitled to the conferment
of the ownership rights under the provisions of Jammu and
Kashmir State Lands (Vesting of Ownership to Occupants)
Act, 2001 ("Roshni Act"), but according to them the
Corporation alleged to have been causing interference to
dispossess them from the land in question and in addition also
they have been seeking parity with other land owners, namely;
Mst. Zainab Begum and Mirza Maqsood Ali, as well as Adnan
Manzoor Ahangar, etc.
7. Above is direct and uncomplicated explanation of the
core issue, therefore, we do not wish to burden this judgment
with all the factual assertions adumbrated in the memo of
appeals and arguments advanced at bar, in that even accepting
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the proffered facts in their most granular form, they neither
advance nor impair adjudication of the surviving issue.
8. In OWP No. 809/2013, the petitioner-Ghulam Rasool
Mistri has thrown challenge to order No. 2340/2012 dated
10.11.2012 passed by Joint Commissioner (Adm) SMC, Srinagar,
whereby after removing the encroachment made by the
appellants, the possession of the land has been handed over to
Mr. Adnan Manzoor, in compliance to the direction of this Court.
Petitioner had also sought a direction for payment of Rs. 50 lacs
as damages to him. Likewise, in OWP No. 1784/2012, he besides
prayed for payment of Rs. 15 lacs as damages, further seeks
restoration of the status quo ante on the spot, in respect of the
land falling under Survey No. 437 min situated at Rampora
Chattabal, Srinagar and to restrain the respondents from causing
interference. Besides this, the petitioner has also sought direction
for conducting probe by IGP Crime Branch for alleged illegal and
contemptuous act of the respondents.
9. The desperation of appellant, Ghulam Rasool Mistri can
be gauged from the fact that he is not only party in all the four
appeals, but is also in litigation on the same subject matter
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before the Civil Court and thus the writ Court has rightly
observed that the writs filed by him would not lie
10. Insofar as the writ petition bearing OWP No. 1166/2016
which is subject matter of LPAOW No. 118/2018 is concerned,
the petitioner, before the writ Court was none other than Srinagar
Municipal Corporation [the Corporation], and the challenge was
to the order dated 07.07.2015 passed by the Financial
Commissioner (Rev) J&K Srinagar in revision petition filed by the
private respondent Nos.1 to 22 against the order No. 498/LR
dated 20.07.1992 passed by respondent No. 24 (Assistant
Commissioner, Revenue, Srinagar). The Financial Commissioner,
vide impugned order therein dated 07.07.2015 has disposed of
the revision petition with a direction to the concerned authorities
to dispose of the cases of the petitioner under the "Roshni Act"
provided they had applied in time and fulfill the other conditions
as prescribed under the Roshni Act with a specific rider that
otherwise, in no way, the State land shall be allowed to be
encroached upon. In the said revision petition before the
Financial Commissioner, the appellants in LPAOW No. 118/2018
along with other occupants of the State land total 22 in number
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have thrown challenge to the order bearing No. 498/LR dated
20.07.1992 and also for setting aside the entry made in the
girdawari of the year, 1992 on the basis of said order of Moza
Rampora Tehsil and District Srinagar.
11. By virtue of order dated 20.07.1992, the Assistant
Commissioner, Srinagar directed the Tehsildar Srinagar to record
possession of land measuring 41 kanals 01 marla under Survey
Nos. 7 & 437 in estate Batamaloo and Rampora respectively, in
favour of erstwhile Municipal Committee now Srinagar Municipal
Corporation so as to manifest the possession of formal handing
over of possession of land in revenue records.
12. This order earlier also was a subject matter of challenge
before the Financial Commissioner, who vide order dated
22.10.1997 passed in revision petition No. 2 of 1997, titled
Mehda and 25 others Vs. A.C Srinagar and anr., has dismissed
by holding that order of the Assistant Commissioner cannot be
construed as one for transferring the land in question to Srinagar
Municipality, which power obviously does not vest with him but
Assistant Commissioner was acting in accordance with the
provisions of law to ensure that the revenue record depicts the
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position emerging as a consequence of proceedings under Land
Acquisition Act of physical transfer of the land to Srinagar
Municipality. Therefore, the question of again settling the same
issue in the second revision petition filed by the appellants before
the Financial Commissioner which had given rise to LPAOW No.
118/2018 (OWP No. 1166/2016) titled Abdul Hamid Dandra and
ors. Vs. Srinagar Municipal Corporation is just an abuse of
process of Court.
13. Broadly speaking, the land in question total measuring
177 kanals, comprised in three survey Nos. 07 (Batmaloo), 437
(Rampora) and 139 (Bagh-I-Nandsingh) stand reflected in the
name of Corporation (Srinagar Municipality in revenue records).
Out of the land measuring 44 kanals 05 marlas, and 58 sq. ft,
falling in Survey No. 537 was notified for acquisition by the State
in terms of notification issued under endorsement No. 153-
66/SQ/49 dated 26.05.1989 and on completion of acquisition
proceedings, possession slip was executed by and between
Manzoor Ahmad, Naib Tehsildar, Chattabal and Mr. Abdul Salam
Bhat, Administrator, Municipality on 15.07.1992, whereby the
two officers have certified to have handed over and taken over the
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possession of land measuring 41 kanals 01 marla under Survey
Nos. 7 of Batmaloo and 437 of Rampora. Furthermore, out of
these 41 kanals, 01 marla of land comprised in Survey No. 7 is
stated to be 29 kanals and 11 marlas, meaning thereby that the
land measuring 11 kanal 10 marlas had been transferred to the
Corporation from Survey No. 437. Therefore, without going
further into these questions of facts, it is suffice to note that there
are very categoric observations made by the writ Court that land
in question on which petitioners are laying their respective claims
has been transferred to the Corporation, which even otherwise,
was recorded as "State Land".
14. Insofar as possession of land by Adnan Manzoor S/o
Manzoor Ahmad is concerned, he stated to have purchased 01
kanal of land by participating in open auction in 2004 for sale
consideration of Rs. 42,50,000/- and said auction notice is said
to have been published in press also. Therefore, appellants on
admitted facts cannot seek parity with said Adnan Manzoor.
15. The appellants also seek the parity with one Mst. Zainab
Begum and Mirza Maqsood Ali, however, from the record, it is
borne out that the said portion of land over which Mst. Zainab
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Begum and Mirza Maqsood Ali have been conferred the ownership
rights falls in other patch of the land comprised in Survey No.
437, possession of which was not handed over/transferred to the
Corporation, but the appellants-petitioners are claiming over that
portion of the land which form part of the land possession of
which is held by the Corporation. Therefore, due to this factual
disparity, the appellants have no legal right of same treatment.
16. It has also come on record that claim of the appellants
for conferment of ownership right came to be considered by the
Government, but same was rejected.
17. Although the writ Court dealt with all the four writ
petitions including the one stood dismissed by a Co-ordinate
Bench on merits, nonetheless there are categoric findings of the
writ Court that the possession of land comprising in two survey
numbers viz 7 and 437 of two estates Batmaloo and Rampora
respectively, stood handed over to the Corporation on the date of
issue of communication dated 20.07.1992, therefore, this fact
negates the case of the appellants that they have been in
possession of the land in question. It has been further held by the
writ Court that the possession of the department of the
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Government or institution can be established only by entries in
that regard made in the relevant record. It is further held by the
writ Court that any department or institution is not expected to
actually be present on the land to establish its possession and we
are also in agreement with these observations of the writ Court.
18. The finding of possession of the Corporation over the
land in question arrived by the writ Court on the basis of the
admitted fact of handing over of the land to the Corporation in
pursuance of acquisition proceedings held way back in the year,
1989 and further in view of the report of the Commissioner
(Registrar Judicial of the High Court of J&K and Srinagar), who
came to be appointed at the instance of petitioners and also this
report of the Commissioner was never objected to.
19. Therefore, these appeals are nothing but classic case of
re-litigation and multiplicity of litigation which practice needs to
be discouraged, so as to prevent the time of public and Court
from being wasted.
20. The Hon'ble Supreme Court in the case of K.K Modi Vs.
K.N Modi and ors.; AIR 1998SC1297 has highlighted the concept
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of re-litigation/multiplicity of litigation as an abuse of process of
the Court and in this regard, in para No. 44 observed as under:-
"One of the examples cited as an abuse of the
process of court is re-litigation. It is an abuse of
the process of the court and contrary to justice
and public policy for a party to re-litigate the
same issue which has already been tried and
decided earlier against him. The re-agitation may
or may not be barred as res judicata. But if the
same issue is sought to be re-agitated, it also
amounts to an abuse of the process of court. A
proceeding being filed for a collateral purpose, or
a spurious claim being made in litigation may
also in a given set of facts amount to an abuse of
the process of the court. Frivolous or vexatious
proceedings may also amount to an abuse of the
process of court especially where the
proceedings are absolutely groundless. The court
then has the power to stop such proceedings
summarily and prevent the time of the public
and the court from being wasted. Undoubtedly, it
is a matter of courts' discretion whether such
proceedings should be stopped or not; and this
discretion has to be exercised with
circumspection. It is a jurisdiction which should
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be sparingly exercised and exercised only in
special cases. The court should also be satisfied
that there is no chance of the suit succeeding."
21. The above noted facts go to depict a sorry state of affairs
as to how appellants by presenting the facts in varied hues and
interpretations across different Forums, continued to litigate and
relitigate to justify their unjust claim over the "State land",
despite subject matter of litigation on hand involving plain and
lucid facts and issues, the appellants have deliberately
convoluted their presentation to prolong litigation and spawned
multiplicity of proceedings.
22. Be that as it may, admittedly the land in question is the
State land and now, is under the legal possession of the
Corporation, therefore, question arises as to whether at this
stage, any such right survives in view of the judgment passed by
the Division Bench of this Court in case titled S.K Bhalla (Prof.)
Vs. State of J&K & ors., reported as, 2020 (5) JKJ 39 [HC]
whereby the Roshni Act is declared as unconstitutional, contrary
to law and thus, held all the acts done under the Roshni Act as
unconstitutional and void ab-initio.
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23. After the statute under which appellants have been
claiming their right of vesting of ownership in respect of land in
question is declared as unconstitutional and void ab-initio, the
appellants' claim extinguishes from its inception and thus legally
neither can claim nor can derive any benefit from such void
statute.
24. Although the appellants have also sought parity for
conferment of ownership rights but the principle of parity is
based on the guarantee of positive equality before law and if any
illegality or irregularity has been committed by any forum, others
cannot invoke the jurisdiction of the Court for repeating or
multiplying the same illegality or irregularity.
25. In all the appeals, the sole legal foundation for every
asserted right of ownership rests on the benevolence of Roshni
Act that has been declared as completely unconstitutional and
void ab-initio, therefore, once foundation crumbled into
constitutional nullity, in that event, the claimants could not
derive even iota of benefit from a void ab initio statute, as every
superstructure erected thereon is wiped clean ab-initio, hence, we
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do not deem it appropriate to go into the other aspects of the
matter either raised or dealt by the writ Court.
26. In this view of the matter, we do not find any error of
law or fact has been committed by the Writ Court while passing
the judgment under challenge. Accordingly, all the three appeals
are dismissed along with all connected CM(s).
(SHAHZAD AZEEM) (SINDHU SHARMA)
JUDGE JUDGE
JAMMU
11.11.2025
Tarun/PS
Whether order is speaking: Yes
Whether order is reportable: Yes
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