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2016 DIGILAW 309 (JK)

DAYA KRISHAN WALI v. STATE OF J&K

2016-06-01

TASHI RABSTAN

body2016
JUDGMENT : Tashi Rabstan, J. Through the medium of this petition, the petitioner is seeking quashment of Govt. Order No. 4-TSM of 2000, dated 17.01.2000 issued by the Commissioner/Secretary to Government, Tourism Department, whereby the property-in-question, i.e., land measuring 09 kanals and 10 marlas under Hut No. 200, over which Golf View Hotel is constructed, at Gulmarg, Kashmir has been transferred in favour of respondents 4, 5 and 6. He is also seeking a direction to the official respondents to accept the recommendations of Chief Executive Officer, Gulmarg bearing No. GPO/L- 4V/618-19, dated 28.05.1983 thereby extending the lease in favour of petitioner. 2. The facts-in-brief, as projected in the writ petition, are that the land-in-question was transferred on lease by the State Government in favour of father of petitioner, namely, Shamboo Nath Wali and two others persons, over which they constructed Golf View Hotel. Later on, the other partners withdrew from the partnership and in their place one Kundan Lal Koul was inducted as a partner. It is averred that his father Sh. Shamboo Nath Wali by virtue of a Deed of Settlement transferred half of the Hotel in favour of petitioner being his son with all rights as an owner and also authorised the petitioner to get the same transferred in his name along with the land appurtenant to the extent of his share. It is averred that the Deed of Settlement came to be registered in the Court of Sub-Registrar, Srinagar under No. 899/122, dated 04.07.1975. The further case of petitioner is that subsequently he also purchased the remaining half portion of Golf View Hotel from Kundan Lal Koul by virtue of Sale Deed dated 08.01.1982, which came to be registered on 05.05.1982, thus he became the absolute and sole proprietor of the said hotel. 3. Further, it is averred that since the lease with respect of the land-in-question had expired, the petitioner applied for renewal of the same before the concerned authority. Accordingly, the Chief Executive Officer, Gulmarg Project Organization, Tangmarg vide his Communication No. GPO/L-4/618-19, dated 28.05.1983 addressed to the Secretary to Government, Housing and Urban Development Department recommended that since the petitioner has become sole proprietor of Golf View Hotel, the lease in respect of the land-in-question be extended in his favour. It is averred that instead of extending the lease in his favour, respondent No. 2 issued Govt. It is averred that instead of extending the lease in his favour, respondent No. 2 issued Govt. Order No. 4-TSM of 2000, dated 17.01.2000, whereby the property-in-question has been transferred in favour of respondents 4, 5 and 6 on the basis of a Will allegedly executed by the father of petitioner. 4. The contention of learned counsel for petitioner is that the Golf View Hotel had been illegally occupied by the nephews of petitioner, respondents 4 and 5 herein, during the absence of petitioner when he was serving in Nuclear Fuel Complex, Department of Atomic Energy, Hyderabad. His further contention is that the Will allegedly executed by the father of petitioner in favour of respondents 4 to 6 is fake one just to illegally and fraudulently grab the property of petitioner. 5. It is contended that no show cause notice or any right of hearing was ever given to petitioner before changing/ altering the existing lease, that too when the Chief Executive Officer, Gulmarg Project Organization had recommended for extension of lease in favour of petitioner. Thus, it is contended that the order impugned is not only illegal but has been arbitrarily passed in favour of respondents 4 to 6. 6. Objections have been filed on behalf of respondents. In the objections filed on behalf of respondents 4 to 6, it is averred that a family dispute had arisen even during the life time of original lessee, i.e., Shri Shamboo Nath Wali, father of writ petitioner and grandfather of respondents 4 and 5. As such Shri Shamboo Nath Wali vide Settlement Deed dated 23.11.1982 debarred the writ petitioner from the share of Hotel Golf View and nominated his other son, namely, Girdhari Lal Wali, father of respondents 4 and 5 to succeed the property-in-question. Subsequently, as per Settlement Deed dated 03.06.1986 registered with Sub-Registrar, Srinagar on 10.09.1986, respondents 4 to 6 were declared to be the legal heirs of Shamboo Nath Wali as regards the property-in-question. Further, it is averred that Girdhari Lal Wali died on 13.09.1991 at Jammu and his three surviving legal heirs, respondents 4 to 6 herein, represented the Government for renewal of lease deed in respect of the property-in-question. Accordingly, the Government renewed the lease vide Govt. Order No. 4-TSM of 2000, dated 17.01.2000, impugned herein, in their favour. Further, it is averred that Girdhari Lal Wali died on 13.09.1991 at Jammu and his three surviving legal heirs, respondents 4 to 6 herein, represented the Government for renewal of lease deed in respect of the property-in-question. Accordingly, the Government renewed the lease vide Govt. Order No. 4-TSM of 2000, dated 17.01.2000, impugned herein, in their favour. Thus, respondents 4 to 6 have denied that the petitioner was ever owner of Hotel Golf View at Gulmarg. 7. In the objections filed on behalf of respondents 2 and 3, it is denied that the petitioner is the owner of Golf View Hotel at Gulmarg. Further, it is averred that as per Settlement Deed dated 03.06.1986 it is respondents 4 to 6 who have succeeded to enjoy the lease hold rights of Golf View Hotel after the death of Girdhari Lal Wali. It is further averred that the petitioner had been debarred by the original lessee Sh. Shamboo Nath Wali from taking any share in the Golf View Hotel vide Deed of Cancellation dated 23.11.1982 thereby cancelling the earlier Deed of Settlement registered on 04.07.1975, therefore, the recommendations of Chief Executive Officer, Gulmarg have become irrelevant. Thus, it is averred that the order dated 17.01.2000 transferring the lease hold rights in favour of respondents 4 to 6 is perfectly justified. 8. In the objections filed by Chief Executive Officer, Gulmarg, it is averred that he recommended the renewal of lease hold rights in favour of petitioner only on the basis of Settlement Deed dated 03.07.1975, Whereas the petitioner is not entitled to any relief in view of cancellation of Deed of Settlement by the original lessee on 30.11.1982. 9. Heard learned counsel appearing for the parties and perused the writ record. 10. Although, as per the claim of petitioner, which is also admitted by the respondents that initially the Deed of Settlement came to be registered by the original lessee in the Court of Sub-Registrar, Srinagar on 04.07.1975, however, the specific stand of respondents is that the same came to be cancelled by the original lessee himself on 30.11.1982 debarring the petitioner from claiming the share and inducting another son, namely, Girdhari Lal Wali, father of respondents 4 and 5, to succeed the property-in-question. 11. Mr. Raina, learned counsel for petitioner, however, argued that the Deed of Settlement once registered cannot be withdrawn/cancelled. 11. Mr. Raina, learned counsel for petitioner, however, argued that the Deed of Settlement once registered cannot be withdrawn/cancelled. In support of his argument, he has relied upon a judgment of the Apex Court reported as AIR 1996 SC 2220 and also a judgment of this Court reported as 2000 SLJ 392 : JKJ Soft JKJ/61, State of J&K v. Special Tribunal, J&K. He further contended that the Deed of Cancellation of Settlement executed by the original lessee is even otherwise against the provisions of Section 4 of J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 as well as Section 39 of the Specific Relief Act, 1977. Per contra, learned counsel appearing for respondents argued that the Settlement Deed of 1975 is even otherwise void because of the reason that the provisions of Land Grants Act and Rules have not been followed. 12. Further, contrary to the claim of petitioner, the stand of respondents 4 to 6 is that vide another Settlement Deed dated 03.06.1986 registered with Sub-Registrar, Srinagar on 10.09.1986, they were declared to be the legal heirs of original lessee Shamboo Nath Wali as regards the property-in-question. It has also been brought on record and also stated by the learned counsel for petitioner that the petitioner earlier also had filed a civil suit with regard to the aforesaid property in the Court of learned Munsiff, Tangmarg and the same is still pending. 13. Further, a perusal of the writ record reveals that on one hand, Commissioner/Secretary to Government, Tourism Department has issued order dated 17.01.2000 transferring the lease hold rights in favour of respondents 4 to 6, whereas, on the other hand, the Chief Executive Officer, Gulmarg Project Organization, Tangmarg vide his Communication No. GPO/L-4/618-19, dated 28.05.1983 has recommended that since the petitioner has become sole proprietor of Golf View Hotel, the lease in respect of the land-in-question be extended in his favour. Therefore, in my view, serious disputed questions of facts have been raised in the petition and the petitioner is seeking determination of the same through the medium of present petition, which in my view cannot be appropriately dealt with and decided in a petition filed under Article 226 of the Constitution of India, as the same require thorough consideration of evidence on record. As the petitioner has disputed the title of property-in-question; the dispute therefore is of a civil nature which cannot be decided in writ jurisdiction. 14. Therefore, in view of what has been discussed above and the fact that a Civil Suit with respect to the property-in-question is pending in the Court of learned Munsiff, Tangmarg, I do not propose to deal with the matter any further lest it should affect the outcome of said suit filed by the petitioner. Accordingly, the writ petition is dismissed along with connected miscellaneous petitions, if any.