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2020 DIGILAW 389 (JK)

Daily Subah Kashmir v. Union Territory of J&K

2020-08-13

RAJESH BINDAL, RAJNESH OSWAL

body2020
Judgement Rajnesh Oswal, J.—The appellant has challenged the order dated 19.06.2020 passed in CM No. 2023/2020 in WP(C) No. 909/2020, whereby interim relief sought by the appellant for restraining the respondents from causing any interference in the peaceful occupation and possession qua the shop Nos. 50, 51, 52 and 53, located at Rehabilitation Complex, Jahangir Chock, Srinagar, has been rejected. 2. The brief facts as narrated by the appellant in the appeal are that the appellant was handed over the possession of the aforesaid shops by the Economic Reconstruction Agency (ERA) in the year 2016 but formal order of allotment was never issued in favour of the appellant. The appellant thereafter filed the civil suit. Besides praying for other reliefs he also sought declaration to the effect that the appellant is entitled to issuance of proper allotment orders qua the shops mentioned above and also for mandatory injunction directing the defendants therein to issue proper allotment orders in favour of the appellant. However, subsequently the aforesaid suit was withdrawn on the assurance that the case of the appellant for formal allotment would be considered. As the claim of the appellant was not considered, the present writ petition was filed for directing the respondents to consider and issue formal allotment orders qua shops Nos. 50, 51, 52 and 53 located at the Rehabilitation Complex, Jahangir Chowk, Srinagar and direction in the nature of prohibition, thereby restraining the respondents from causing any interference in the peaceful occupation and possession of the petitioner qua the shops mentioned above. Alongwith the writ petition, an application for interim relief was also filed. The learned Single Judge vide order dated 19.06.2020, declined the ex-parte ad-interim relief and posted the matter for filing objections and further ordered that the matter will be considered after the objections are filed by other side. Challenging the aforesaid order, the present intra-court appeal has been filed. 3. The appellant has challenged the order impugned on the ground that the findings recorded by the learned Single Judge that the appellant had managed possession of the four shops, where he is running his Newspaper, is factually incorrect as the appellant had been put into possession by the ERA in the year 2016 itself. Further the appellant figures at Sr. No. 74 in the list of rehabilitators of commercial enterprises, as prepared by ERA. Further the appellant figures at Sr. No. 74 in the list of rehabilitators of commercial enterprises, as prepared by ERA. The appellant further pleaded that in identical matters, this Court had protected other tenants and the petitioner is also similarly situated but the learned Single Judge has not treated the appellant in parity qua the other similarly situated persons, who were protected by this Court. 4. Mr. Jahangir Iqbal Ganai, learned senior counsel for the appellant has vehemently argued that the appellant is in possession of four shops and as other tenants were protected by this Court so on parity the possession of the appellant too is required to be protected. He further contended that on assurance of the respondents, the appellant withdrew the civil suit and when the respondents did not adhere to the assurance, the appellant was compelled to file the writ petition. 5. Per contra, Mr. Moomin Khan, learned counsel appearing for Srinagar Municipal Corporation has vehemently argued that the appellant is a trespasser and has illegally occupied the said shops. He further submitted that in the month of February 2016, the Project Manager, ERA Kashmir had approached SDPO Shergari, Police Station, Haft Chinar for lodging FIR against the Editor-in Chief of the appellant, namely Nazir Ahmed Wani,as he had illegally entered into the shops, which are subject matter of the instant appeal. Pursuant to this F.I.R No. 7 of 2016 was registered u/s 448 R.P.C and even challan against the Editor-in Chief of the appellant namely Nazir Ahmed Wani is also pending before Forest Magistrate (JMIC) Srinagar. He also submitted that the appellant had not only filed the suit, which was subsequently withdrawn, reference to which has been made in the writ petition but in the year 2016 also he had filed similar suit. That too was withdrawn subsequently. He expressed his inability to file detailed objections due to COVID-19 Pandemic but nonetheless he vehemently argued that the shops in question were allotted to other persons but the same have been illegally occupied by the appellant. There is litigation pending in this Court, where the rightful allottees are seeking possession of the shops allotted to them 6. Heard learned counsels for the parties and perused the relevant referred record. 7. This is the undisputed fact on record that there is no allotment letter issued in favour of the appellant. There is litigation pending in this Court, where the rightful allottees are seeking possession of the shops allotted to them 6. Heard learned counsels for the parties and perused the relevant referred record. 7. This is the undisputed fact on record that there is no allotment letter issued in favour of the appellant. The contention of the appellant that he was put into possession by the ERA itself in the year 2016, is seriously disputed by the respondent Nos. 10 to 12 on the ground that ERA officials had approached the SDPO concerned for lodging FIR against the Editor-in Chief of the appellant namely Nazir Ahmed Waniregarding forcible occupation of four shops by him and even FIR stands registered and the trial is also pending. The said fact has not been disputed by the appellant. More so, the communication bearing No: SRE/JK/ERA/19/621-624 dated 17.10.2019, addressed by S&RE, JKERA/JTFRP to Project Manager, JKERA, placed on record by appellant states that there is no record available to establish that the appellant was shifted in the Rehabilitation Complex and the 4 shops in reference have been allotted to 4 DPs after draw of lots. After the arguments in the case were concluded in the present appeal on 21.07.2020, incidentally OWP No. 60/2018 was listed on 23.07.2020 before one of us (Rajnesh Oswal-J).In this petition one of the petitioner No. 2 had raised grievance regarding occupation of the shop No. G-52 by unauthorized persons and while perusing the writ petition, it was found that the shop Nos.50, 51, 52 & 53 were allotted to different persons whereas the shop No. 52 was allotted to the petitioner No. 2 in the above mentioned writ petition. Thus the contention of the Learned Counsel of the respondents Nos. 10-12 does not seem to be without any factual basis. 8. The appellant at this stage has not been able to demonstrate as to when and how he was put in possession of four shops by the ERA. It seems that the appellant by his conduct has left the 4DPs high and dry as they have not been able to occupy the shops duly allotted to them in draw of lots. Therefore, this Court does not find any illegality or impropriety in the finding recorded by the learned Single Judge that the appellant has managed possession of the four shops. Merely because the appellant is figuring at Sr. Therefore, this Court does not find any illegality or impropriety in the finding recorded by the learned Single Judge that the appellant has managed possession of the four shops. Merely because the appellant is figuring at Sr. No. 74 in the list of rehabilitators prepared by the ERA does not improve the status of the appellant. In the meeting of Divisional Level Committee held on 26.02.2020, the appellant was represented by a lawyer. There he agreed to vacate four shops in question so that the same may be allotted to rightful persons. But instead of vacating these shops, writ petition was filed by the appellant. The appellant has tried to wriggle out of this quandary by first time pleading before this Court that its Counsel never made any statement to vacate these shops before DLC on 26.02.2020. Ironically neither the appellant pleaded this fact in the writ petition nor approached DLC for rectification of the record of the minutes of the meeting of DLC. This is nothing but an afterthought by the appellant to come out of the finding recorded by the Learned Single Judge. That of course is impermissible. The appellant cannot be permitted to make out a new case in appeal when he had not pleaded the same before the Learned Single Judge. 9. The appellant has not been able to point out anything from record that he is in legal occupation of the property. The appellant seems to have been resorting to litigation to legalize its illegal occupation as such the appellant has miserably failed to make out a prima facie case for indulgence of this Court to protect his unauthorized occupation. 10. The contention of the appellant that other tenants were protected by the Court and on the basis of principle of parity his possession too is required to be protected, is also misconceived. It is not forthcoming from record as to how the appellant is similarly situated. The principle of parity would come into play only when the case of appellant would be at par with other tenants and that is why the learned Single Judge has ordered listing of all the connected matters along with the writ petition filed by the appellant. As such, the order passed by learned Single Judge does not suffer from any illegality and the same is upheld. As such, the order passed by learned Single Judge does not suffer from any illegality and the same is upheld. The learned Single Judge while passing the order impugned has already directed listing of all the connected matters and it would be in the interest of justice that the writ petition titled “Miss Dilshada Ara and another Vs State of J&K and others” bearing OWP No. 60/2018 is also listed along with the bunch of cases. Registry is directed to list the said writ petition along with the writ petition bearing WP(C) No. 909/2020. 11. The appeal petition is, accordingly, dismissed. However, it is made clear that nothing said above shall be considered as an expression of opinion on merits. This Court had to notice few facts and record some findings for the reason that the matter was argued in detail, otherwise the parties would have been aggrieved of the fact that their arguments have not been noticed.