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2016 DIGILAW 582 (JK)

Daya Krishen Wali v. State of J&K

2016-11-08

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

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JUDGMENT : N. Paul Vasantha Kumar, J. 1. This letters patent appeal is preferred against the order made in OWP No. 318/2002, dated 01.06.2016, dismissing the writ petition filed by the appellant seeking to quash Govt. Order No. 4-TSM of 2000, dated 17.01.2000, whereby the lease hold rights of land measuring 9 kanals and 10 marlas under Hut No. 200, over which Golf View Hotel is constructed at Gulmarg (Kashmir) have been transferred in favour of Respondent Nos. 4, 5 and 6 and for directions directing the official respondents to accept the recommendations of the Chief Executive Officer, Gulmarg Project Organization dated 28.05.1982, recommending the lease in favour of the appellant. According to the appellant, the land in question was transferred on lease basis in favour of his father, namely, Shamboo Nath Wali and two other partners, over which they constructed Golf View Hotel. Later on, two partners withdrew from the partnership and in their place one Kundal Lal Koul was inducted as a partner. It is claimed by the appellant that his father Sh. Shamboo Nath Wali by a deed of settlement transferred half of the hotel in favour of the appellant with all rights and also authorized the appellant to get the same transferred in his name along with the land appurtenant to his share. The deed of settlement was registered by a registered deed dated 04.07.1975. It is claimed by the appellant that thereafter he purchased the remaining portion of the Golf View Hotel from Kundal Lal Koul by virtue of sale deed dated 08.01.1982. Thus, he claimed that he became the absolute and sole proprietor of the said hotel. The lease granted with respect to the land in question having expired, the appellant applied for renewal of the same before the competent authority and the Chief Executive Officer, Gulmarg Project Organization, Tangmarg by communication dated 28.05.1983 recommended to the Secretary to Government, Housing and Urban Development Department for renewal of the lease in his favour. The Secretary to Government instead of renewing the lease hold rights in respect of the land in question in favour of the appellant, by order dated 17.01.2000 transferred the lease hold rights in favour of Respondent Nos. 4, 5 and 6 on the basis of a will allegedly executed by the father of the appellant. The Secretary to Government instead of renewing the lease hold rights in respect of the land in question in favour of the appellant, by order dated 17.01.2000 transferred the lease hold rights in favour of Respondent Nos. 4, 5 and 6 on the basis of a will allegedly executed by the father of the appellant. It is the contention of the appellant that the Golf View Hotel had been illegally occupied by the nephews of the appellant i.e. Respondent Nos. 4 and 5 herein, in his absence when he was serving in Nuclear Fuel Complex, Department of Atomic Energy, Hyderabad. His further contention is that the will allegedly executed by his father in favour of Respondent Nos. 4 to 6 is not genuine and it is a fake one created to grab the property of the appellant. Another contention of the appellant is that no notice was issued before changing or altering the existing lease hold rights to Respondent Nos. 4 to 6 and the recommendations made by the Chief Executive Officer was also ignored. Therefore, the said order grating lease/renewal of lease in favour of Respondent Nos. 4 to 6 is liable to be set aside with a direction to the Government to extend the lease in favour of the appellant based on the recommendation of the Chief Executive Officer. 2. The said prayer was opposed by Respondent Nos. 4 to 6 stating that a family dispute arose even during the life time of the original lessee, namely, father of the appellant and grandfather of Respondent Nos. 4 and 5. Therefore, said Shamboo Nath Wali by settlement deed dated 23.11.1982 debarred the appellant from the share of hotel Golf View and nominated his other son, namely, Girdhari Lal Wali, who is father of Respondent Nos. 4 & 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, Respondent Nos. 4 to 6 were declared to be legal heirs of late Shamboo Nath Wali as regards the property in question. The said Girdhari Lal Wali died on 13.09.1991 at Jammu and his three surviving legal heirs, who are Respondent Nos. 4 to 6, represented to the Government for renewal of the lease in respect of the property in question. Accordingly, the lease was renewed in their favour by order dated 17.01.2000. 3. Respondent Nos. The said Girdhari Lal Wali died on 13.09.1991 at Jammu and his three surviving legal heirs, who are Respondent Nos. 4 to 6, represented to the Government for renewal of the lease in respect of the property in question. Accordingly, the lease was renewed in their favour by order dated 17.01.2000. 3. Respondent Nos. 2 and 3 also opposed the prayer stating that as per the settlement deed dated 03.06.1986 Respondent Nos. 4 to 6 have succeeded to enjoy the lease hold rights of Golf View Hotel after the death of Girdhari Lal Wali, as the original lessee, namely, Shamboo Nath Wali debarred the appellant from taking any share in the Golf View Hotel by deed of cancellation dated 23.11.1982, cancelling the earlier deed of settlement registered on 04.07.1975. Therefore, recommendations of the Chief Executive Officer have become irrelevant. 4. The learned Single Judge has considered the rival claim with regard to the lease hold rights and taking note of the filing of the civil suit by the appellant with regard to the aforesaid property before the Court of Munsiff, Tangmarg and having regard to the fact that another Civil Suit bearing COS No. 111/1983, now pending in the Court of learned 2nd Additional District Judge, Srinagar, dismissed the writ petition holding that Civil Suits in respect of the property in question being pending and the facts pleaded by the appellant being disputed by the official respondents as well as private respondents, any observation made in the writ petition will affect outcome of the civil suits filed by the appellant. 5. Against the said order of the writ court, this L.P. appeal is preferred by contending that the civil suit, which has been filed at Tangmarg had been filed in an emergency by the appellant through some of his well wisher and friend and appellant being a migrant, it is not possible for him to go to valley and pursue the said remedy, infact the said remedy has become meaningless. It is also the contention of the appellant that civil suit No. 111/1983 was filed by the appellant under Section 9 of the Specific Relief Act against respondent Nos. 4 and 5 as also against late Sh. Shamboo Nath Wali, father of the appellant. The said suit was initially filed before High Court, Srinagar and was transferred by order dated 06.05.1988 to the Court of 2nd Additional District Judge, Srinagar. 4 and 5 as also against late Sh. Shamboo Nath Wali, father of the appellant. The said suit was initially filed before High Court, Srinagar and was transferred by order dated 06.05.1988 to the Court of 2nd Additional District Judge, Srinagar. According to the appellant, he being a migrant is unable to pursue the said remedy, hence the appellant was justified in challenging the order renewing lease hold rights in favour of Respondent Nos. 4 to 6 by Government Order No. 4-TSM of 2000, dated 17.01.2000. 6. Learned senior counsel appearing for the appellant argued that while granting renewal of lease in favour of Respondent Nos. 4 to 6, no notice was issued to the appellant. Since the appellant is claiming lease hold rights based on the settlement deed, which according to the official respondents as well as private respondents, has been cancelled and the lease hold rights are granted in favour of Respondent Nos. 4 to 6 based on a subsequent settlement deed, the validity of the same shall have to be gone into to come to a conclusion as to whether the appellant is entitled to get transfer of lease hold rights in his favour or Respondent Nos. 4 to 6 are entitled to get transfer the lease hold rights in their favour. 7. The learned Single Judge has considered the said aspect and noticing the disputed facts pleaded by the parties and having regard to the civil suits filed by the appellant wherein the claim of the appellant can be established, dismissed the writ petition. 8. It is not in dispute that the appellant has approached the civil court twice. On perusal of the plaint in civil suit No. 111/1983, a copy of which is produced before this Court, it is evident that the prayer made by the appellant in the civil suit is to pass a decree under Section 9 of the Specific Relief Act for recovery of possession of two storied bunglow comprising of main building, annex and servant quarter known as Golf View Hotel along with land appurtenant thereto under Khasra No. 1 Survey No. 814/722 situated at Gulmarg (Kashmir) along with the articles as per list Annexure-1 in favour of the appellant. The said suit was filed based on settlement deed registered on 04.07.1975 and the said deed of settlement having been cancelled, whether the cancellation of settlement deed is right or wrong and the settlement deed subsequently executed in favour of Respondent Nos. 4 to 6, cannot be gone into in the writ proceedings. 9. It is a well settled proposition of law that if the facts are disputed regarding lease hold rights of immovable property, the issue cannot be allowed to be agitated in writ proceedings under Article 226 of the Constitution of India and the parties ought to have approached the civil forum to establish their right by adducing evidence. 10. Whether the High Court is entitled to go into the disputed questions of fact in a writ petition filed under Article 226 of Constitution of India, is already decided by the Hon'ble Supreme Court. (a) In the decision reported in (1976) 1 SCC 292 (Arya Vyasa Sabha and Others v. The Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad & Ors.) the view taken by the High Court that disputed questions of fact are to be left open to be decided before the Civil Court was upheld by Hon'ble the Supreme Court. A similar view was considered by a Division Bench of Madras High Court in (1995) 1 MI-J 426 (Kuppuswami Nainar v. The District Revenue Officer, Thiruvannamalai & Ors.) and in paragraph No. 4 it is held as follows:- "4. Now the question for consideration is, having regard to the fact that the District Revenue Officer has expressed his opinion on the question of title whether the order under question should be interfered with. It may be pointed out here that in a petition under Article 226 of the Constitution the question of title regarding immovable property cannot properly be gone into, because a mass of evidence may be required for adjudicating the question of title. Even if we are to interfere with the order under appeal, it is the other party who has to go to a civil court and establish title. As far as the exercise of jurisdiction under Article 226 of the Constitution is concerned, it does not matter to it whether 'A' party goes to civil court or 'B' party. Even if we are to interfere with the order under appeal, it is the other party who has to go to a civil court and establish title. As far as the exercise of jurisdiction under Article 226 of the Constitution is concerned, it does not matter to it whether 'A' party goes to civil court or 'B' party. Therefore, we are of the view that the question of title has to be decided by the civil court, without reference to the order under question. Hence, we decline to interfere with the order challenged in the writ petition. However, we make it clear that in the event a suit for declaration of title and for appropriate consequential relief is filed, the civil court shall decide such a suit, without reference to the findings recorded by respondents 1 and 2 in the impugned orders, but only on the basis of the pleadings of the parties and evidence adduced by them before it. We also make it clear that any opinion expressed by the learned single Judge, contrary to what we have stated above, shall also stand modified accordingly. With these observations, the writ appeal is dismissed........" (b) In the decision reported in (2003) 4 SCC 317 (Rourkela Shramik Sangh v. Steel Authority of India Ltd. & Anr.) it is held that the disputed questions of fact could not be entertained in the writ proceedings. In paragraph 19, the Supreme Court held as follows: "19. The question as to whether the workmen concerned had been continuously working for a period of ten years so as to enable them to derive benefit of the judgment of this Court in R.K. Panda case (1994) 5 SCC 304 ) was essentially a question of fact......." In paragraph 22, the Hon'ble Supreme Court further held as follows: "22.......a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. v. National Union Waterfront Workers (2001) 7 SCC 1 ).........." (c) In the decision reported in (2006) 9 SCC 256 (Himmat Singh v. State of Haryana & Ors.,) the Hon'ble Supreme Court held that the statement of the appellant or the 5th respondent was correct or not could not ordinarily be tested in writ proceedings and it is well known that in writ petition ordinarily such a disputed question of fact could not be entertained. (d) In yet another decision reported in (2007) 7 MLJ 687 (Food Corporation of India v. Harmesh Chand), the Supreme Court held as follows: "Since the facts were seriously disputed by the appellant and no factual finding could be recorded without consideration of evidence adduced by the parties, it was not an appropriate case in which the High Court ought to have exercised its writ jurisdiction. The parties could have approached a civil court of competent jurisdiction to adjudicate the matter." The Hon'ble Supreme Court in the decision reported in 2009 (1) SUPREME 52 (Ranjit Singh v. State of Punjab & Ors.) has also taken a similar view. The Hon'ble Supreme Court in the decision reported in (2015) 2 SCC 145 (Meena Choudhary v. Commissioner of Delhi Police & Ors.) upheld the decision of the High Court in not entertaining writ proceedings on disputed facts. On the basis of above judgments and settled legal proposition as laid down by the Hon'ble Supreme Court in the above referred decisions, we are of the view that order of the writ Court in dismissing the writ petition and not entertaining the writ petition and leaving the appellant to work out his remedy in pending suit is perfectly legal and we are unable to find any reason to interfere with the said order. However, it is made clear that the lease hold rights granted to Respondent Nos. 4 to 6 by Govt. Order No. 4-TSM of 2000, dated 17.01.2000 will be subject to the orders to be passed in the civil suit, which is pending before the 2nd Additional District Judge, Srinagar or any other suit. With above observations, the L.P. appeal is dismissed. No costs.