Research › Search › Judgment

J&K High Court · body

2002 DIGILAW 141 (JK)

Gh. Mohd. Patigaroo v. State Of J. &K.

2002-05-13

NISAR AHMAD KAKRU

body2002
The respondent No. 5 owned a four storeyed building called "New Light Hotel" comprising several shops situated at Sopore near main chowk out of which four shops were under the use and occupation of the petitioners in the capacity of tenants as contended in the writ petition. The building is said to have gutted in a devastating fire on the intervening night of 28th and 29th of September, 2001 terminating the tenancy. Thereafter the parties appear to have entered into an agreement on 12/10/2001 agreeing therein to revive the tenancy. It is this agreement which is relied upon by the petitioners to seek a restraint to be placed on the respondent No. 5 from reducing the dimension of the shops with further prayer to command the said respondent to adhere to the site plan issued by the respondent No. 3. A direction is also sought against the respondent No. 5 to hand over the possession of four shops to the petitioners. 2. Apparently a civil dispute is sought to be adjudicated upon by invoking the extra ordinary writ jurisdiction and to bring the dispute within the ambit of the special jurisdiction of this court the petitioners have averred at page 6 of the writ petition : " ....... If the respondent No. 5 does not raise the construction in accordance with the approved site plan and the permission dated 01/01/2002 and instead of four shops he raises some more shops in the ground storey of the building, that is definitely going to effect the rights and interests of the petitioners ......". 3. The averment aforementioned depicts that the respondent No. 5 intends to construct shops exceeding four in number making provision for more business concerns. This course being not acceptable to the petitioners their endeavour is to restrict the number of shops to four only perhaps to confine the business activity in the area to themselves or for any other reason which need not be addressed to because it is quite irrelevant to the issue involved in this petition that is whether terms of the agreement do entitle the petitioners to the relief sought. To answer the question the agreement relied upon by the petitioners assumes significance. To answer the question the agreement relied upon by the petitioners assumes significance. Let me assume further that the respondents do not raise any dispute with respect to the execution of the agreement, yet it is to be seen as to what rights accrue to the petitioners out of its terms. I have gone through it. Its plain reading reveals that the respondent No. 5 has agreed to reconstruct the building and let out four shops to the petitioners through Trading Federation Sopore on a rent to be settled by the said Federation, but the agreement does not envisage any embargo which would prevent the respondent No. 5 from constructing the shops as many as he likes nor does it specify any particular dimension for the shops. Taking the condition of the agreement as it is, a right may flow to the petitioners to lay the claim for re-entry but such right may arise subsequent to the erection of the shops and not before and in case any such claim is laid it shall have to be dealt with in the light of the pleadings of the parties and according to law, therefore, I choose to refrain from expression of opinion whether agreement is sound and enforceable in law and to say the least no cause of action is available to the petitioners at this stage for the simple reason that shops have not been erected as on date as per averments made in the writ petition. 4. It is apposite to mention here that the writ petition has been filed on mere apprehension of violation of the site plan and considering the relief prayed for in the writ petition in the face of the averments made, it becomes manifestly clear that the petitioners effort is to force the Town Area Committee (for short TAC) to compel the respondent No. 5 not to make any deviation from the site plan on the strength of an agreement. No law has been cited by the LC for the petitioners which would call for such direction against the TAC. One fails to understand that if a right to raise the construction on the land is available to the respondent No. 5 in a capacity recognised by law why cant he raise shops as many as he chooses. No law has been cited by the LC for the petitioners which would call for such direction against the TAC. One fails to understand that if a right to raise the construction on the land is available to the respondent No. 5 in a capacity recognised by law why cant he raise shops as many as he chooses. No doubt, he has to adhere to the site plan sanctioned by the TAC but he is also within his rights to seek modification/alteration of the site plan. The petitioners have no right to seek a restraint to be placed on the TAC from making modification/alteration to the site plan and it is for the TAC alone to see whether such modification/alteration is permissible. True it is that if any of the rights of any citizen are violated by such construction he is within his rights to approach the court of law for an appropriate remedy. In the case on hand petitioners case is not based on violation of a legal, statutory or constitutional right but fact of the matter is that breach of agreement is the principal contention. In essence the petitioners have invoked jurisdiction of this court for enforcement of a right which according to their perception accrues them by dint of the agreement. Obviously, it is a dispute with respect to an immoveable property between private individuals against which the aggrieved person has an alternative remedy available by way of a regular suit. The question arises as to whether petitioners can invoke the writ jurisdiction of this court for enforcement of their private rights. To have the answer to the question it is advantageous to refer to Mohan Pandey v. Usha Rani Rajgaria, AIR 1993 SC 1225 at page 1227 para 6 which may be noticed: "......... It has repeatedly been held by this court as also by various High Courts that a regular suit is the appropriate remedy for settlement of disputes relating to property rights between private persons and that the remedy under Article 226 of the constitution shall not be available except where violation of some statutory duty on the part of a statutory authority is alleged. And in such a case, the court will issue appropriate direction to the authority concerned. And in such a case, the court will issue appropriate direction to the authority concerned. If the real grievance of the respondent is against the initiation of criminal proceedings, and the orders passed and steps taken thereon, she must avail of the remedy under the general law including the Criminal procedure code. The High court cannot allow the constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal, are available. It is not intended to replace the ordinary remedies by way of a suit or application available to a litigant. The jurisdiction is special and extraordinary and should not be exercised casually or lightly. We, therefore, hold that the High court was in error in issuing the impugned direction against the appellants by their judgment under appeal. The appeal is accordingly allowed, the impugned judgment is set as de and the writ petition of the respondents filed in the High court is dismissed. There will be no order as to costs." 5. At the risk of repetition it may be observed that at the best the petitioners can contend that they have a contract to get the shops on rent in their favour but such right may accrue to them after the shops are erected. The agreement does not give them any right to have the shops constructed agreeing to the dimension they choose, conversely it is for the respondent No. 5 to see as to what is in his interests. The agreement cannot be stretched too far to bar the respondent No. 5 from raising the construction which suits to his interests. Be that as it may, admitted position being that the dispute relates to property rights which centres around the agreement pressed into service by the petitioners the controversy cannot be settled unless material evidence including oral is adduced. Moreso, the TAC is under no statuary obligation to implement the agreement arrived at between the private persons and appropriate remedy for settlement of such controversy is a regular suit under the civil law subject to availability of cause to be seen by the competent court of jurisdiction. 6. The settled law being that a party who seeks a writ must establish that his legal, statutory or constitutional right is invaded or threatened. Mr. 6. The settled law being that a party who seeks a writ must establish that his legal, statutory or constitutional right is invaded or threatened. Mr. Qayoom facing the querry as to which of his rights are violated which give him the cause to file the writ petition made a reference to section 12-A of the Houses and Shops Rent control Act 1966 (Act of 1960 for short). Although to that effect there is not even a whisper in the writ petition, yet I would like to deal with the argument as otherwise I will be failing in my duty if anything transpired during the course of argument goes unnoticed. To appreciate the contention the said section may be extracted: "12-A. Restoration of Possession to the tenant in the event of fire. (1) If any house or shop gutted in fire, is wholly or partly rebuilt by the landlord, the tenant thereof shall have prior right of re-entry thereto. (2) The landlord on the completion of the building, shall give a notice of at least one months duration calling upon the tenant to re-enter into the building on payment of rent at market rate, notwithstanding anything contained in section 8. (3) On receipt of the notice the tenant will convey his consent within 15 days agreeing to pay a rent at market rate, failing which the tenant will forfeit his right of re-entry. (4) In case the tenant gives his consent of re-entry on payment of rent at market rate and the landlord declines re-entry to the tenant, the tenant may make application within one month of his having given consent to Controller who will proceed in the matter in accordance with the provisions of section 13 of the Act." 7. True it is that the statute aforementioned confers a prior right of re-entry upon a tenant in case the house or shop is gutted by fire wholly or partly. The statute also provides that if the landlord declines re-entry to the tenants despite the fact that he has consented to the re-entry on payment-of rent at the market rate, in such eventuality the tenant has a right to make an application to the controller within one month subsequent to the consent given by him and such application has to be adjudicated upon in accordance with the provisions contained in section 13 of the Act. Thus what emerges is that the section 12-A while conferring a right on the tenant has also given him the forum to agitate the action against the breach of mandate of the section. Here is a case where instead of availing of the remedy provided under the Act itself, the petitioners have invoked the writ jurisdiction of this court which is unwarranted because remedy as prescribed under the very section from which right flows to them cant be bye-passed. 8. In the result, the writ petition is dismissed in limini. However, no order as to costs.