Jammu & Kashmir High Court - Srinagar Bench
Inhabitants Cum Estate Holders Of vs Ut Of Jammu And Kashmir Th. Commissioner on 31 October, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Case No. :- WP(C) No. 1238/2025
Reserved on: 24.09.2025
Pronounced on: 31.10.2025
Uploaded on: 31.10.2025
Whether the operative part
or full judgment is pronounced? Full
Inhabitants cum Estate Holders of .... Petitioner(s)
Village Khimber Th. Hilal Ahmad
Bhat, Age 55 years, S/o Abdul
Rahim Bhat, R/o Khimber,
Hazratbal, Srinagar &
Farooq Ahmad Ganie, Age 50
years, S/o Habib Ul lah Ganie,
R/o Khimber, Hazratbal, Srinagar.
Through:- Mr. Tasaduq H. Khawaja, Sr. Adv. with
Mr. Imaan Abdul Muizz, Adv. &
Mr. Naseer Ul Akbar, Advocate.
V/s
1. UT of Jammu and Kashmir Th. Commissioner ....Respondent(s)
Secretary to Govt., Revenue Department,
Civil Sectt., Jammu/Srinagar.
2. Financial Commissioner (Revenue), J&K,
Tankipora Srinagar Kashmir.
3. Divisional Commissioner Kashmir Srinagar.
4. Deputy Commissioner, Srinagar Kashmir.
5. Tehsildar North, Hazratbal, Srinagar Kashmir.
6. Patwari Halqa Khimber Hazratbal, Srinagar
Kashmir.
7. Sub Registrar, East Tankipora, Srinagar.
Through:- Mr. Mohsin Qadri, Sr. AAG with
Ms. Maha Majid, Assisting Counsel.
Case No. :- WP(C) No. 692/2025
1. Bashir Ahmad Mir, Aged 70 years, .... Petitioner(s)
S/o Mohammad Subhan Mir
WP(C) No. 1238/2025 Page 1 of 13
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WP(C) No. 692/2025
CCP(S) No. 201/2025
2. Abdul Gaffar Reshi, Aged 65 years,
S/o Mohammad Sultan
3. Gh. Mohammad Wani, Aged 75 years,
S/o Asadullah Wani
4. Abdul Rehman Dar, Aged 72 years,
S/o Ghulam Ahmad
5. John Mohammad Ganaie, Aged 35 years,
S/o Habibullah Ganaie
6. Ab. Ahad, Aged 80 years, S/o Ghulam
Ahmad Reshi
7. Ali Mohammad Mir, Aged 65 years,
S/o Khazir Mohammad
8. Mohammad Akbar Dar, Aged 90 years,
S/o Ghulam Ahmad Dar
9. Ab. Ahad, Age 80 years, S/o Ghulam Nabi
Reshi
10. Ghulam Mohammad Bhat, Aged 55 years,
S/o Jalal Ud Din Bhat
11. Fayaz Ahmad, Aged 55 years,
S/o Ghulam Mohd. Reshi
12. Riyaz Ahmad Ganaie, Aged 43 years,
S/o Habibullah Ganaie
13. Ghulam Mohi Ud Din Aged 60 years,
S/o Ghulam Ahmad Reshi
14. Ghulam Mohammad Reshi, Aged 65 years,
S/o Bashir Ahmad
All residents of Khimber Srinagar Kashmir.
Through:- Mr. Tasaduq H. Khawaja, Sr. Adv. with
Mr. Imaan Abdul Muizz, Adv. &
Mr. Naseer Ul Akbar, Advocate
V/s
1. UT of Jammu and Kashmir Th. Commissioner ....Respondent(s)
Secretary to Govt., Revenue Department, Civil
Sectt., Jammu/Srinagar.
2. Financial Commissioner (Revenue), J&K,
Tankipora Srinagar Kashmir.
3. Divisional Commissioner Kashmir Srinagar.
4. Deputy Commissioner, Srinagar Kashmir.
WP(C) No. 1238/2025 Page 2 of 13
c/w
WP(C) No. 692/2025
CCP(S) No. 201/2025
5. Tehsildar North, Hazratbal, Sringar Kashmir.
6. Patwari Halqa Khimber Hazratbal, Srinagar
Kashmir.
7. Sub Registrar, East Tankipora, Srinagar.
Through:- Mr. Mohsin Qadri, Sr. AAG with
Ms. Maha Majid, Assisting Counsel.
CORAM: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGMENT
1. Having regard to the controversy involved in the instant petitions
concerning the same subject matter, inasmuch as the reliefs sought, the
petitions are being taken up together for disposal with the consent of the
appearing counsel for the parties, while WP(C) No. 1238/2025 has been
filed in the representative capacity with the leave of the Court, WP(C) No.
692/2025 has been filed by the petitioners in their individual capacity.
2. CCP No. 201 of 2025 accompanying the instant petitions has been
filed by the petitioners in WP(C) No. 1238/2025 (supra), alleging therein
violation of the interim order passed by this Court on 27.05.2025.
The petitioners in the instant petition have prayed for following
reliefs:-
a. By issuance of writ, order or direction one in the nature of
certiorari, the Govt. order bearing No. 03-FC (Rev.) of 2024 dated
24.04.2024issued by respondent No. 2 be quashed particularly in so
for it restrains issuance of revenue extracts qua section 5 shamilat
Land falling under Survey Nos. 742,743, and747 situated at
Khimber Srinagar Kashmir.
b. By issuance of writ, order or direction one in the nature of
mandamus, the respondents be commanded to issue or cause to
issue the revenue extracts in respect of Shamilat Deh land (Sec.
5)in favor of estate holders to the extent of land falling under
Survey Nos. 742, 743, and. 747 situated at Khimber Srinagar
Kashmir which is recorded in the revenue records in their
possession, occupation and ownership strictly in accordance with
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orders passed by the Divisional Commissioner Kashmir in the
matter.
c. An appropriate writ commanding respondent No. 4 to produce copy
of the report compiled by him before the Hort'ble Court so that
matter is taken to logical end.
d. Any other order or direction which may be deemed fit and properly
this Hon'ble Court may also be passed in favour of the petitioner
including a direction to treat petitioners at par with the petitioners
in WP (C) No. 692 of 2025 and allow access to appropriate portal to
enable petitioners to obtain revenue extracts. Further, respondent
No.2 be directed to take the process of enquiry ordered by virtue of
impugned order to its logical end within some specified time, for the
same would be in consonance with law and justice."
In the instant petition, the petitioners have prayed for the following
reliefs:-
a. By issuance of writ, order or direction one in the nature of
certiorari, the Govt. Order bearing No. 03-FC (Rev) of 2024 dated
24.04.2024 issued by respondent No. 2 be quashed.
b. By issuance of writ, order or direction one in the nature of
mandamus, the respondents be commanded to issue the revenue
extracts in respect of Shamilat Deh land (Sec. 5) in favour of
petitioners to the extent of land falling under Survey No. 742, 743 &
747 situated at Khimber Srinagar Kashmir, which is recorded in the
revenue records in their possession, occupation and ownership
strictly in accordance with orders passed by the Divisional
Commissioner Kashmir in the matter.
c. Any other order or direction which may be deemed fit and proper by
this Hon'ble Court may also be passed in favour of the petitioner
including a direction to allow access to appropriate portal to enable
petitioners to obtain revenue extracts."
FACTS:-
3. The centre of controversy in the petitions (supra) is order No. 03-
FC (Rev.) of 2024 dated 24.04.2024 (hereinafter called as "the impugned
order") issued by the Financial Commissioner (Revenue), Kashmir-
respondent 2 herein, whereby while taking suo moto cognizance of the
matter concerning setting aside of Fard-i-Partal dated 24.04.2024 by the
Divisional Commissioner, Kashmir-respondent 3 herein, the respondent 2
herein has kept the actions taken pursuant to the said order and decision of
the Divisional Commissioner, Kashmir as recorded in minutes of meeting
issued on 25.09.2023, in abeyance and appointed the Deputy
c/w
Commissioner, Srinagar-respondent 4 as an Enquiry Officer, directing
that no revenue extracts for any purpose shall be issued concerning
„Shamilat land' in village Khimber, while further directing the Deputy
Commissioner-Srinagar-respondent 4 herein to conduct a detailed inquiry
regarding entitlement of Rule 5 Shamilat Land to the estate holders of the
estate and to take note of the observations made by the then Assistant
Commissioner, Revenue (ACR), Srinagar in Fard-i-Partal dated
06.05.2015 about the authenticity of Mutation No. 39 of the Estate
Khimber, requiring the Deputy Commissioner, Srinagar-respondent 4 also
to inquire into the genuineness of Mutation No. 39 of Estate Khimber, as
also address certain observations made by the ACR in Fard-i-Partal dated
06.05.2015.
4. The petitioners have challenged the impugned order on the premise
that the said order of refusal to issue revenue extracts in their favour qua
Rule 5 Shamilat Land having vested unto them on pro-rata basis vis-à-vis
proprietary land in Estate Khimber, is legally invalid and essentially
depriving them of their right to use and enjoy the said Shamilat Land
including their right to sell the said land.
5. Response has been filed by the respondents to the petition bearing
WP(C) No. 692/2025 (supra), however, the said reply stands adopted in
opposition to WP(C) No. 1238/2025 as well, and the petitions are being
opposed, inter-alia, on the premise that the observations made in the
Fard-i-Partal dated 06.05.2015 by the ACR form a foundation for
initiation of the corrective action in terms of the order under challenge,
while stating further that the Deputy Commissioner, Srinagar-respondent
4 herein has been lawfully empowered to undertake a comprehensive
c/w
inquiry into the authenticity of revenue entries, though admitting in the
reply that the inquiry stands conducted and report thereof stands drawn by
the Deputy Commissioner, Srinagar-respondent 4, which is presently
under scrutiny and that in a connected petition bearing WP(C) No.
2527/2023, the petitioners therein have prayed for effecting pro rata
distribution of Rule 5 Shamilat Land of the village on the principle of
"Bai Chara" and, as such, pending such exercise, no further action is
warranted qua the claim of the petitioners. It is further stated in the reply
that 165 Kanals of Rule 5 Shamilat Land has been taken over by the
Department of Sheep Husbandry in the Estate Khimber, as a result of
which, the quantum of Shamilat Land in the Estate Khimber has got
reduced, directly impacting the overall entitlement of each co-sharer in the
Estate Khimber, which has to be factored while distributing the said land.
It is also stated in the reply that the Bai Chara proceedings qua the said
Shamilat land remained incomplete and multiple applications have been
received from the aggrieved zamindars/villagers concerning their
legitimate entitlements. It is lastly stated in the reply that since the
Financial Commissioner (Revenue)-respondent 2 is the highest Revenue
Officer in hierarchy, therefore, the order under challenge has been rightly
issued in exercise of powers vested with the Financial Commissioner
(Revenue)-respondent 2 herein.
Heard learned counsel for the parties and perused the record.
6. The learned counsel for the petitioners while making his
submissions in line and tune with the case set up in the petitions, invited
the attention of this Court to the inquiry report submitted by the Deputy
Commissioner, Srinagar-respondent 4 herein conducted pursuant to the
c/w
impugned order and would contend that the said report makes it clear that
the very premises on the assumed existence of which impugned order
came to be issued, did not exist and have been found to be insignificant by
the Deputy Commissioner, Srinagar-respondent 4 herein, thus, leaving no
scope to indefinitely continue restriction on issuance of revenue extracts
for sale and purchase purposes qua the land in question.
Learned counsel for the petitioners would further submit that the
plea of the respondents that no "Bai Chara" has taken place qua the
partition and distribution of Rule 5 Shamilat Land in the Estate Khimber
is factually incorrect, as the respondents in the response filed to the
WP(C) No. 2527/2023 have specifically and unequivocally taken a firm
stand that "after issuance of the minutes of meeting, the villagers of
Khimber have taken over the possession of land in survey numbers 742,
743 and 747 of estate Khimber on Bhai Chara/mutual understanding and
without any disturbance and that Khimber will be one of very few villages
of whole UT of Jammu and Kashmir where Shamilat Land shall be
distributed as per pro rata basis and records shall be updated accordingly".
According to the learned counsel for the petitioners, since it is
admitted by the respondents that the distribution of Rule 5 Shamilat Land
in the Estate Khimber has already taken place, therefore, the respondents
cannot be heard to say that the distribution has not taken place in
accordance with mutual understanding or Bai Chara.
It is further contended by the learned counsel for the petitioners that
the revenue extracts have had been already issued in favour of certain land
holders qua Rule 5 Shamilat Land in the village Khimber, who have
executed sale deeds thereof, therefore, the respondents cannot refuse to
c/w
issue revenue extracts qua the said land in favour of the petitioners within
their entitlement even after factoring and deducting part of the land having
been taken by the Department of Sheep Husbandry.
7. On the other hand, the learned counsel for the respondents in
response to the aforesaid submissions of learned counsel for the
petitioners, would make his submissions in line and tune with the
aforesaid reply filed to the petition.
8. Having regard to the respective pleadings of the parties, in as much
as, the rival submissions of learned counsels appearing for the parties, as
also the record available on the file in general and the inquiry report of the
Deputy Commissioner, Srinagar-respondent 4 herein in particular, the
issue/controversy involved in the petitions have been substantially
narrowed down after submission of the aforesaid inquiry report of the
Deputy Commissioner, Srinagar-respondent 4 herein, a perusal would
tend to show that a categorical finding has been recorded therein the
report that Mutation No. 39, which determined Rule 5 Shamilat Land of
village Khimber is genuine, while making it clear that the observations
made by the ACR, Srinagar qua Fard-i-Partal dated 06.05.2015 having
highlighted certain discrepancies, were unwarranted and insignificant and
that the Divisional Commissioner, Kashmir-respondent 3 herein has
rightly addressed the issue of encroachment of Rule 5 Shamilat Land by
the Sheep Husbandry Department.
A deeper and closer examination of the said enquiry report reveals
that the finding recorded by the Deputy Commissioner, Srinagar-
respondent 4 herein are not only well reasoned, but seemingly are in line
c/w
with the observations made by the Committee of Officers appointed
earlier by Divisional Commissioner, Kashmir-respondent 3 herein.
It would be significant to mention here that the relevant conclusion
drawn by the Divisional Commissioner, Kashmir-respondent 3 herein in
the matter were made after having taken cognizance of the report of the
Committee constituted by him, which Committee had clearly observed
that part of Rule 5 Shamilat Land has been wrongly occupied by the
Sheep Husbandry Department and Tribal Department, upon which, certain
assets have been created by the said departments, same shall continue to
remain with the said departments and that the villagers/land holders have
willingly parted way the said land to the Government and that in lieu of
said land, the cases of the villagers/land holders for their share in rest of
the land shall be processed separately as per law on receipt of separate
requests from the villagers and that the land holders/villagers shall avail
all the rights over the Shamilat Land as guaranteed under the relevant
Revenue Laws/Rules including Rule 05 of Shamilat Rules and that
considering the findings of the report by the Committee, the Order issued
by the then ACR Srinagar vide Fard-e-Partal dated 06.05.2015 for Survey
Nos. 742, 743 and 747 is set aside and that going forward, there will not
be any restrictions on purchase and sale of Section 5 Shamilat land in
aforesaid survey numbers in the village Khimber and what emanates from
above is that thereafter Rule 5 Shamilat Land falling in aforesaid survey
numbers stand formally partitioned amongst land holders on pro-rata basis
according to their respective entitlements and appropriate entries as well
made in the revenue records by virtue of Fard-i-Partal carried on
29.09.2023, thus, manifestly suggesting that the land in question has been
c/w
partitioned to the satisfaction of all stakeholders and that there is complete
Bai Chara in the village. Insofar the plea of the respondents that no
formal partition of Rule 5 Shamilat Land in the village in question has
taken place is concerned, though the same is belied by the stand taken by
the respondents in opposition to WP(C) No. 2527/2023, yet in any case, it
cannot be a ground for denying issuance of a revenue extract to the
landowners to sell their share in the joint/un-partitioned Shamilat holding,
as the law on the subject is well settled that even in absence of a formal
partition, a co-sharer in a joint property can sell his share and that by such
sale, the purchaser steps in the shoes of the seller and any such sale is
always subject to final partition that may take place in future at the
instance of any co-sharer. It is on this premise that Rule 5 Shamilat land is
also sold and purchased throughout the Jammu and Kashmir.
9. It is appropriate and significant to mention here that the law qua the
rights of land holders in the Rule 5 Shamilat Land is well settled and is no
more res-integra. This Court in case titled, "State of J&K Vs. Hamida
Begum and ors., reported as AIR 1979 J&K 48" has authoritatively held
that rights and incidents of Shamilat Land are same as that of the
proprietary land. Similarly, in case titled, "Union of India Th. Defence
Estates Officer, Srinagar Vs. Freena Boga, reported as SLJ 2004 (II)
776", this Court has held that rights in Rule 5 Shamilat Land are identical
to those of proprietary land. A similar proposition has been reiterated by
this Court in case titled, "Kuldeep Raj and others versus State of J&K
and others, reported in 2022 (1) SLJ 166", wherein a reference has been
made to Boon No. 4 issued by the Maharaja of the erstwhile State of
Jammu and Kashmir, whereby and whereunder Khalsa/State land
c/w
commonly known as Khalsa Sarkar, was ordered to be bestowed upon
village community and was ordered to be shown as Shamilat-Deh and the
villagers concerned were awarded jointly the same rights therein, which
they possess in their individual holdings and that the landholders in a
particular village would be entitled to have a share in the said declared
Shamilat-Deh land pro rata to their holdings, meaning thereby that a
villager shall have proprietary rights in the Shamilat land in proportion of
the seize of his holding in a particular estate and such right got vested in
the landholders at the time of issuance of said Boon No. 4, which right
cannot be taken away without the authority of law and unless the persons
are duly compensated in accordance with law.
10. It is also pertinent to mention here that record tends to show that
though the Deputy Commissioner-Srinagar-respondent 4 herein has
submitted the aforesaid inquiry report more than a year before, yet the
Financial Commissioner (Revenue)-respondent 2 herein has failed to take
further action on the said report, therefore, leading to the only inference
that the findings recorded by the Deputy Commissioner, Srinagar-
respondent 4 herein in the said inquiry report are conclusive and
reasonable without there being any contrary view against it.
11. In view of the aforesaid position obtaining in the matter, it cannot,
but be said, that the continuation of restrictions on the issuance of revenue
extracts in favour of the petitioners qua Rule 5 Shamilat Land in question
for an indefinite period is unfair, arbitrary and unreasonable, more so
when the very basis on the assumed existence of which, such restrictions
came to be imposed by the Financial Commissioner (Revenue)-
respondent 2 herein have been found to be non-existent after a through
c/w
enquiry by the Deputy Commissioner, Srinagar-respondent 4 herein, in
that, said continued restriction puts an unwarranted clog on right of the
petitioners herein to use and enjoy the Rule 5 Shamilat Land to the extent
of their respective shares, thus, constituting an invasion on the
constitutional right to property enshrined in the Constitution, which right
has been held by the Courts to be akin to a fundamental right.
12. Viewed, thus, for what has been observed, considered and analyzed
herein-above, the instant petitions succeed, therefore, the impugned order
No. 03-FC(Rev) of 2024 Dated 24.04.2024 issued by respondent No. 2 to
the extent it bars/restrains issuance of revenue extracts (Fards) so as to
prevent sale and purchase of Rule 5 Shamilat Land is quashed, as a
consequence whereof, the respondents, in general, and the Tehsildar
concerned, in particular, is directed to issue revenue extracts in favour of
estate holders of village Khimber in respect of Rule 5 Shamilat Land
falling in Khasra No. 742, 743 and 747, provided that concerned applicant
estate holder is in possession of the land, in respect of which, the
application for issuance of revenue extract/Fard is being sought and that
the quantum of such land does not exceed the total entitlement of the said
applicants/estate holders in Rule 5 Shamilat Land in the village on pro-
rata basis. Further the revenue extracts/Fards be issued within a time
frame prescribed by rules from the date an application is made in this
regard regardless of the fact as to whether or not a formal partition qua the
said land has taken place.
Further, while determining the entitlement of each landholder in
Rule 5 Shamilat Land in the estate, the part of the said land that is stated
to have been occupied by Department of Sheep Husbandry and Tribal
c/w
Department measuring 165 Kanals shall be deducted from the total
divisible Shamilat land without prejudice to the right of such landholders
to claim further entitlement in Rule 5 Shamilat land, as, when and if land
in lieu of the said occupied Shamilat Land is made available.
13. Disposed of alongwith connected applications, if any.
14. A copy of this judgment and order shall be made placed on the
record of each petition.
15. In view of the aforesaid decision rendered in the petitions (supra),
the instant contempt proceedings are closed for the time being, leaving it
open to the petitioners herein to seek initiation of appropriate action in the
event of availability of cause and if so advised.
(JAVED IQBAL WANI)
JUDGE
JAMMU
31.10.2025
Ram Krishan
Whether the judgment is speaking: Yes
Whether the judgment is reportable: Yes
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