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2009 DIGILAW 442 (JK)

Gh. Mohd. Sheikh v. State

2009-09-03

MANSOOR AHMAD MIR

body2009
1. The petitioner has questioned the Government Order No.142-HME of 2007 dated 12.3.2007, whereby the claim of the petitioner for the construction of a shop within the complex of Mirza Mohammad Afzal Beig Memorial Hospital, Anantnag (for short MMABM Hospital) came to be rejected by respondent No.1. He has also prayed for a writ of mandamus commanding the respondents to allow him to reconstruct the shop by treating that the said site has been allotted to him for a period of 40 years in terms of the mandate of Jammu & Kashmir Land Grants Act and the rules framed thereunder and also pay Rs.10 lacs as compensation for the loss sustained by him due to the illegal demolition of his shop and destruction of drugs by the respondents. 2. Precisely the case of petitioner is that vide order dated 19.2.1997 he was permitted to open a Fair Price Shop within the complex of MMABM Hospital. He constructed the shop, purchased drugs and was selling the same. However, the respondents cancelled the said permission order vide dated 7.4.1997 and demolished the shop of petitioner thereby he sustained great loss. Thereafter under Secretary to Government, Health & Medical Education Department made approval vide letter dated 29.5.2000 addressed to the Director Health Services for opening of a Fair Price Shop in the said complex, but before he could act on the said letter, it came to be challenged before this Court by the medium of OWP No.276/2000 and the execution of said letter came to be stayed. Thereafter vide order dated 4.8.2000 the said writ petition came to be dismissed and interim direction came to be vacated. He constructed the shop and also moved an application before respondent No.4 for fixation of rent. It failed to do so, constrained the petitioner to file OWP No.509/2002 before this Court. The application moved by the petitioner for amendment of the writ petition on the allegation that the shop came to be demolished on 15.11.2002 and drugs worth rupees ten lacs came to be destroyed, came to be allowed and, accordingly, he filed the amended writ petition. The said petition came to be disposed of vide judgment dated 8.9.2006 with a direction to the respondents to consider the case of petitioner. The said petition came to be disposed of vide judgment dated 8.9.2006 with a direction to the respondents to consider the case of petitioner. The respondents failed to comply the directions, constrained the petitioner to file contempt petition No.398/2006 and the same came to be dismissed with liberty to him to challenge the consideration order, if advised. Thus, by the medium of present writ petition the petitioner has challenged the consideration order on the grounds taken in para-24 of the petition. 3. The respondents have resisted the petition on the ground that the sanction came to be rescinded vide Government Order No.375-HME of 1997 dated 7.4.1997. Thereafter the construction raised by him came to be removed. The petitioner has also committed the trespass and the trespassers cannot claim any right of protection. Respondent No.3 has no authority to allot any site in favour of any person not to speak of petitioner enabling him or any other person to construct shop in the premises of the said hospital for selling of medicines. The petitioner has based the foundation of his case on the letter dated 29.5.2000. The said letter is fabricated one and the petitioner deserves to be dealt with in accordance with law. 4. After noticing the reply, the petitioner has filed the rejoinder. It is averred that no disputed question of fact is involved. It is also contended that the High Court can go into disputed questions of fact, but it cannot decide the intricate and complex questions. The petitioner has averred that letter dated 29.5.2000 is not fabricated one. It is apt to reproduce the relevant para of the judgment dated 8.9.2006 passed by this Court in OWP No.509/2002 in view of the circumstances catalogued above. "In view of the circumstances catalogued above the petition is disposed of with an observation that the respondents may consider the petitioners case and claim in view of the aforementioned letter purported to have been written by Under Secretary under his No.MD/Coord/7/97 dated 29.5.2000 within a period of three months from now after hearing him and dispose of the same appropriately whereafter the petitioner shall be at liberty to reagitate the matter, iof any, cause survives or accrues to him." 5. The respondents were directed to consider the case of petitioner and they have considered the case and stated that the said letter is fabricated one. The respondents were directed to consider the case of petitioner and they have considered the case and stated that the said letter is fabricated one. The petitioner has denied the said factum. Whether the letter is fabricated one or not is a disputed question of fact. In fact it is not only disputed question of fact, but is also intricate one. 6. It also appears that FIR No.288/2000 came to be lodged in Police Station Anantnag under Section 447(A) RPC against the petitioner on the allegation that he had made an unlawful interference upon the premises of MMABM Hospital during the intervening night of 16/17 August 2000 and constructed a tin shed. He was facing trial before the Court of Chief Judicial Magistrate, Anantnag. The case came to be dismissed vide judgment dated 29.9.2007 by giving the benefit of doubt to the petitioner-accused. It is apt to reproduce the operative para of the judgment: "Viewed thus, both the facts and at law, I am of the considered opinion that the prosecution has not been able to prove the case against the accused beyond any reasonable doubt. The benefit of doubt after being given to the accused, the accused deserves acquittal and is accordingly acquitted. He is relieved of his bail and personal bonds. File after due completion shall be consigned to the records." 7. The petitioner came to be acquitted while giving the benefit of doubt. Whether the petitioner has any right, interest or title cannot be gone into by this Court. Whether he has suffered damages, is also a question of fact, cannot be gone into by this Court. If at all he has suffered the damages, to which amount he is entitled to, cannot be gone into by this Court. 8. The Apex Court has laid down the same law in cases titled as Rajinder Singh v. State of J&K, 2008 AIR SCW 5157, Antonio S. C. Pereira v. Ricardina Noronha, 2006 AIR SCW 5155, Sanjay Sitaram Khemka v. State of Maharashtra, 2006 AIR SCW 2488, State of Karnataka v. KGSD Canteen Employees Welfare Association, 2006 AIR SCW 212, Orissa Agro Industries Corpn. Ltd. v. Bharati Industries, 2005 AIR SCW 5715, Chairman, Grid Corpn. Of Orissa Ltd. v. Sukamani Das, (1999) 7 SCC 298 and State Bank of India v. State Bank of India Canteen Employees Union, (1998) 5 SCC 74. 9. Ltd. v. Bharati Industries, 2005 AIR SCW 5715, Chairman, Grid Corpn. Of Orissa Ltd. v. Sukamani Das, (1999) 7 SCC 298 and State Bank of India v. State Bank of India Canteen Employees Union, (1998) 5 SCC 74. 9. Keeping in view the law laid down by the Apex Court in the judgments (supra) and the facts of the case, the disputed questions of facts are involved in this case cannot be gone into by this Court. Thus, this writ petition is not maintainable and the same is, accordingly, dismissed along with all CMPs. Interim direction, if any, shall stand vacated.