M. Yaqoob Mir, J.
1. State land measuring 2 kanals and 6 marlas covered by survey No. 1895 (1 kanal 6 marlas) and survey No. 1896 (1 kanal) situated at village Qasba Baghat Anantnag is bone of contention in between the parties.
2. According to petitioner the land is recorded as 'Gair Mumkin Ada' in the revenue records, vehicles are being plied to different routes from the said bus stand. The area is being continuously used as parking place and operational place known by the name Kukernag-Verinag bus stand, Achabal Ada Anantnag.
3. According to the appearing counsel for the respondent No. 3 the land in question including other land and the structures standing thereon, basically is in possession of the respondents 2 and 3 i.e. Town area committee, however, same is being used as bus stand. Neither the petitioner nor the respondent No. 4 can claim ownership rights.
4. According to the appearing counsel for the respondent No. 4 the land in question alongwith other patches of land covered by survey No. 1895/1 (5 marlas), 3816/1896 (3 marlas) 1897 min (9 marks) 2853/1893 min (15 marks) and 2854/1893 min (16 marlas) has been under the use and occupation of Tonga drivers, who were running their Tongas to various destinations. Later on pursuant to policy decision of the Government Tonga drivers were provided route permits for plying buses, so the area came to be known ' Achabal Tonga Ada'. Respondent No. 4 in the capacity of the president of Tonga Drivers Association in the year 1989 got the land under survey Nos. 1895 (1 kanal 6 marlas) 1895/1 (5 marlas), 1896 (1 kanal), 3816/1896 (3 marks), 1897 min (9 marlas) recorded in the possession of the Tonga Drivers Transport Union Ada through Mohamad Ashraf.
5. That the respondent No. 4 again in the capacity of the President has moved an application before the Tehsildar with the prayer that the Tonga Drivers Union Ada Achabal be conferred ownership rights under Jammu & Kashmir State lands (Vesting of Ownership to the Occupants) Act 2001. After necessary inquiry the Tonga Drivers' Association pursuant to the order under challenge bearing No. 233/R dated 22-10-2007 passed by the District Collector has been conferred the ownership rights viz-a-viz land measuring 2 kanals, 6 marlas covered by survey Nos. 1895 (1 kanal 6 marlas) and 1896 (1 kanal) subject to the deposit of Rs. 20,70,000/-, same is shown to have been deposited vide treasury voucher No. 63281 in treasury Anantnag.
6. The petitioner contends that the petitioner-Association is the occupant of the land in question, so are entitled to be conferred with ownership rights under the Jammu & Kashmir State Lands (Vesting of Ownership to the Occupants) Act, for short referred to as 'the Act'. By medium of this writ petition, petitioner-association has sought the quashment of the order No. 233/R dated 22-10-2007 and also issuance of command for being vested with ownership rights.
7. Thirdly, that respondents to ensure plying of buses by the petitioner from the said land without any interference.
8. With the consensus of the appearing counsel for the parties, matter stand taken up for final adjudication. Thoughtfully considered the submissions as made by the appearing counsel and considered the material available.
9. The Jammu & Kashmir State Lands (Vesting of Ownership to the Occupants) Act came into force in the year 2001. Later on was amended by the Amendment Act of 2004. In terms of the provisions of the Act ownership rights viz-a-viz State land were to be conferred to a person in actual occupation, subject to the fulfillment of conditions incorporated therein. In terras of Section 5 of the Act the occupant had to apply in the prescribed form to the Territorial Tehsildar, then the Tehsildar in terms of Section-6 was required to hold the inquiry and to make a report to the District Collector with recommendations.
10. As per Section 8 of the Act, the occupant claiming the benefit of ownership
i) must be the resident of State;
ii) must apply within a period of three months from the date of commencement of the Act;
iii) has to pay the price as shall be determined.
iv) Land shall not be required for any public purpose.
11. Respondent No. 4 in the capacity of the President of Tonga drivers association immediately after commencement of the Act has applied under the Act, for conferment of ownership rights in favour of the Tonga Drivers Association', as is clear from the application so filed, certified copy of which is taken on record. Ownership rights have been conferred to Tonga Drivers Association not the person of Mohamad Ashraf.
12. According to appearing counsel for the petitioner entries as recorded in the year 1989 in favour of the Tonga drivers association is fraudulent, because entry could not be made. This contention is to be repelled because from the year 1989 petitioner has not challenged the entry, if it is taken that the entry has not been correctly made still the petitioner has the remedial measures available by invoking the jurisdiction of the concerned Superior Revenue Authorities; who is the actual occupant is a disputed question of fact, which cannot be gone into by the writ court.
13. The next contention of the appearing counsel is that ownership rights could be conferred to a 'person' under the Act. Tonga drivers association is not a 'person'. This submission is without substance. As per Section-2 (e), occupant means a person in actual physical possession of the State land on the commencement of the Act personally or through an authorized agent. The person is not defined by the Act, so support can be had from the definition given to 'person' in the General Clauses Act. Sub-section (30) of Section 3 of the General Clauses . Act defines person, same is reproduced herein:
3(30) person....
Person shall include any company or association or body of individuals, whether incorporated or not
14. What follows is that Tonga Drivers Association falls within the definition of a person, so can claim conferment of ownership under the 'Act'.
15. Next contention that it is petitioner who is entitled to be conferred ownership rights. Again claiming in the capacity of an association, but if the petitioner (Association) would have been in possession then they would have till date challenged the entry recorded in the year 1989 in the revenue records. They would also file the application under Section 5 of the Act, which they have not, this also exposes their stand. Even if it is taken that they had no knowledge but still they have remedial measures available under the 'Act'.
16. According to appearing counsel for the respondent No. 3, the land in question as well as the other patches of land adjacent thereto are basically recorded in the name of 'Town Area Committee' and it is the Town area committee, who developed the land, metled it and also raised three storied building with shops. Respondent No. 4 could not be conferred with ownership rights. Neither petitioner is entitled to be conferred with ownership rights. The land is reserved by the Town area committee for the public i.e. for plying of vehicles. The respondent No. 4 has fraudulently succeeded in changing the entry in the revenue papers. This submission may be based on truth, but the entry has not been challenged for a long period of 18 years.
17. Order impugned conferring the ownership rights has already been called in question as the respondent No. 3 on his own showing has preferred an appeal before the Revenue Minister, which according to him is still pending. When it is so, maintainability of the writ petition becomes questionable, as the petitioner can also join the proceedings as warranted before the Revenue Ministry.
18. The disputed questions of fact viz-a-viz actual occupancy cannot be settled by the writ court.
19. The appearing counsel for the respondent No. 4 rightly contended that entry made in the year 1989 till date has not been challenged, vesting of ownership rights under the 'Act' is not available to the petitioner as well as respondent No. 3 because if they would have been interested and would have been actual occupant, then they would have filed the application under Section 5 of the Act before the Tehsildar within the time limit prescribed. This shows they are not actual occupants.
20. Appearing counsel further with all pain and vehemence contended that one suit is pending before the court of Munsiff Anantnag and another pending before the court of Sub Judge Anantnag. Appeal also pending before the Revenue Minister, writ petition has been filed simply to scuttle the proceedings, when the efficacious remedies are available to the petitioner as well as to the respondent No. 3. The submission made by counsel for the respondent No. 4 has lot of substance. Respondent No. 3 in his objections has contended that Tonga drivers union is not in existence, which is a disputed question of fact. That apart respondent No. 3 has fully supported the contentions of the respondent No. 4, as he has annexed photo copy of the memo of appeal as has been preferred by him before the Revenue Minister and has also annexed the photo copy of the application preferred by respondent No. 4 before the Collector Anantnag on 7.9.1989 for correction of entry. The report of the Patwari and Tehsildar concerned dated 18.9.1990 and 22.9.1989 fully establish the occupation of the land in question by the respondent No. 4. It is on that basis entry has been recorded in the year 1989. The respondent No. 3 has also filed an application before the Deputy Commissioner (Collector Anantnag) on 26.10.2007 for restoring the entry by cancelling the entry of Tonga drivers association, results of which are not known. Further more respondent No. 4 has filed suit for injunction on 13.10.2000 pending before the court of Munsiff Anantnag, seeking restraint order against the State and Town Area Committee in causing any disturbance. Munsiff Anantnag has passed the interim order dated 8.3.2008, copy of which is placed on record, to the effect that the defendants therein which include the petitioner shall ply the vehicles under the name and banner of plaintiff Union (respondent No. 4 herein). Another suit has been filed by the petitioner on 17.3.2008 before the court of Sub Judge Anantnag, which is also pending, wherein plaintiff (petitioner herein) had sought grant of injunction for restraining the defendant (respondent No. 4) from causing interference in plying the bus from the yard.
21. What emerges from the above is that when appeal is pending before Revenue Minister against the order impugned, secondly application of (respondent No. 3) President Municipal Counsel Anantnag for rectification of entry is pending before Deputy Commissioner. Then two suits one filed by the petitioner and another filed by the respondent No. 4 are pending, filing of writ petition seems to be aimed at scuttling all those proceedings which is not warranted, more so when the disputed question of fact are involved .
22. Though the appearing counsel for the petitioner tried to cover up the whole case by terming the entry of 1989 in the revenue records in favour of the respondent No. 4 and also the order conferring ownership rights to be fraudulent, so as to persuade intervention by invoking the writ jurisdiction. Relied on the Judgment reported in AIR 2000 SC page 1165 but with all respect ratio of the law laid down will not apply to the present case, as case has its own different features. To establish the fraud if at all committed in the given set of facts, is dependent upon the disputed question of facts, so cannot be looked into by the writ court, when the proper proceedings already stand initiated before the appropriate forums as detailed hereinabove.
23. The Judgment relied on by the appearing counsel for the respondent No. 4 reported in (1976) 3 SCC page 160 is quite applicable to the present case. It is quite relevant to quote para 20 of the said Judgment, which is reproduced herein:
In our opinion, in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The right course for the High court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved. On this short ground while setting aside the findings of the High court, we would dismiss both the writ petition and the appeal with costs. The appellants may, if so advised, seek their remedy by a regular suit.
24. The cumulative effect of the aforesaid position based on fact and law leads to the only one conclusion i.e. the writ petition is premature even otherwise not to be maintained, in view of the pendency of the proceedings before the Revenue Minister, application for rectification of entries before the Deputy Commissioner and the pendency of the suit as filed by the respondent No. 4. Hence writ petition is dismissed. The observations made hereinabove shall not influence the proceedings, as are pending before the court of Munsiff, court of Sub Judge Anantnag, Deputy Commissioner Anantnag and Revenue Minister. They shall be at liberty to take appropriate decision as shall be warranted under law.
25. Dismissed as such alongwith all connected CMP(s).