ORDER

26.04.2024 Oral: -

1. In the instant petition filed under Article 226 of the Constitution, the petitioners have thrown challenge to order dated 07.06.2017, passed by the Financial Commissioner Revenue-respondent 2 herein.

2. Facts giving rise to filing of the instant petition reveal that the petitioners herein owned and possessed proprietary land measuring 05 marlas covered under survey No. 462 at Beehama Ganderbal, in respect of which land a requisition was made by the Municipal Committee Ganderbal to the Additional Deputy Commissioner, Ganderbal for acquiring same in connection with the establishment of Sumo Bus Stand reason the said land being adjacent to a parcel of State land and in furtherance whereof a process came to be initiated by the Additional Deputy Commissioner, Ganderbal, and a report thereof came to be sought from the Tehsildar vide letter dated 11th March, 2008, and the Tehsildar in response to the said letter reported that the proprietor of the said land has desired that in lieu of compensation thereto, he be given land in exchange, stating further that the land in question is on 2 | P a g e highway and the present market value is @ Rs. 12 lacs per kanal, whereas the proposed exchange land is Kahcharie / Nambal in nature having value of @ Rs. 1.50 lacs, expressing further in the letter, the consent of the Municipal Committee, Ganderbal for exchange thereof, whereafter in terms of order 634-35/SQ/Mis dated 19th March 2008, the Deputy Commissioner, Ganderbal, on the recommendations of the Tehsildar, accorded sanction to the exchange of proprietary land measuring 05 marlas of the petitioners with Kahcharie land (Nambal) measuring 05 marlas covered survey No. 390-Min in terms of provisions of Section 26 of the Agrarians Reforms Act 1976, whereafter a mutation No. 1142 dated 28.05.2008 came to be attested in this regard.

3. The said order dated 19th March, 2008 issued by the Deputy Commissioner, Ganderbal, alongwith the aforesaid mutation came to be called in question by private respondents herein before respondent 2-Financial Commissioner in an appeal which appeal in terms of the impugned order came to be accepted and consequently the exchange order including the mutation dated 1142 came to be set aside on the ground that the Deputy Commissioner had no competence and jurisdiction to direct exchange of the land in terms of the provision of Agrarians Reforms Act and in presence of SRO-59, dated 3rd February, 1977, read with SRO-511 dated 19th November, 1999.

4. It is pertinent to mention here that the petitioners herein have had also instituted a suit on 15.03.2011 for declaration and injunction qua the exchange land against the BOCA and the Municipal Committee Ganderbal before Sub Judge, Ganderbal which suit came to be decreed on 08.07.2013 permitting the petitioners herein being plaintiffs in the suit to raise construction over the said exchange land under deemed clause/permission enshrined in the provisions of Control of Building Operations Act, 1988.

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5. The petitioners have questioned the order of the Financial Commissioner dated 07.06.2017 in the instant petition on multiple grounds.

6. Objections to the petition have been filed by the official respondents as well as private respondents, wherein the petition is being opposed and the passing of the impugned order is being defended fundamentally on the ground of applicability of the provisions of SRO 59 & 511 supra, to be precise that the Deputy Commissioner, Ganderbal have had no competence and jurisdiction to order exchange of the land.

Heard learned counsel for the parties and perused on record .

7. Before proceeding to deal with the rival contentions of the parties, it is pertinent and significant to refer to Section 26 of the Agrarians Reforms Act, 1976, which reads as under:-

“ 26. Encroachment on State land and land reserved for grazing purposes.

(1) Subject