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2020 DIGILAW 654 (JK)

Altaf Ahmad Bhat v. Vice Chairman SDA

2020-12-03

VINOD CHATTERJI KOUL

body2020
Judgment Vinod Chatterji Koul, J.—By this Civil Revision, the petitioner calls in question the order dated 19.03.2020 (for short “impugned order”), passed by learned Principal District Judge, Srinagar (for brevity “Appellate Court”), on an Appeal titled Vice Chairman Srinagar Development Authority Sgr & ors v. Altaf Ahmad Bhat, by virtue of which the appellate court while allowing the condonation of delay application as also the Appeal, has set-aside the orders dated 09.07.2019 and 02.12.2019 of the court of Sub Judge, Passenger Tax, Srinagar (for short “Trial court”), with a direction to proceed with the suit in accordance with law, on the grounds detailed out in the civil revision. The petitioner has further prayed that the appeal, which had been disposed of by the impugned order, in acceptance of this revision, be transferred to any other court of competent jurisdiction. The Challenge has been made precisely on the following grounds: a) That the objections filed by the petitioner in opposition to the limitation petition has not been considered in its right perspective; b) That the order impugned order is contrary to facts and law; c) That the Appellate Court has erred in law in deciding the appeal along with limitation petition without considering the objections of the petitioner. d) That the Appellate Court has wrongly condoned the delay as no sufficient cause was shown by the appellants/ respondents herein to seek such condonation. e) That the impugned order is in disregard of the orders passed by this Court as also to the objections filed by the petitioner in opposition to the limitation petition. f) That the impugned order is mechanical and has been passed in total disregard to the applicable law. g) That by the impugned order the final relief has been granted in favour of the appellants/ respondents and there is nothing left in the suit for adjudication. h) That the respondents had the remedy of revision and not the appeal as chosen by them and wrongly entertained by the Appellate Court. 2. Briefly put the case of the petitioner is that he submitted an application to the respondents for allotting him a vacant space at Bemina Main Market. The said space is stated to have been identified by the petitioner only, therefore, its allotment was sought by him on humanitarian grounds to enable him to start his business at such vacant space. 3. The said space is stated to have been identified by the petitioner only, therefore, its allotment was sought by him on humanitarian grounds to enable him to start his business at such vacant space. 3. The respondents entertained and processed the application and while the application of the petitioner was pending the petitioner reliably learnt that the respondents intend to allot the said vacant piece of land to some of their favorite, constraining the petitioner to file a civil suit which was transferred by the learned Principal District Judge, Srinagar, to the court of 2nd Subordinate Judge Civil (PT&E) Srinagar, hereinafter for short as trial court. The petitioner had prayed for the following reliefs in the civil suit: “1. A decree of permanent injunction in favour of the plaintiff and against the defendants, restraining the defendants permanently from issuing any sort of allotment in favour of any of the person except plaintiff. 2. A decree of mandatory injunction commanding the defendants to complete further formalities, if any, for the purpose of allotment of the suit land in favour of the plaintiff. 3. Any other order or decree which this Hon’ble court may deem fit and proper be also passed in favour of the plaintiff and against the defendants.” 4. The petitioner had, alongside the suit, filed an application for grant of ad-interim relief to the effect that defendants/ respondents herein be restrained from allotting the suit land to any other person or putting the same to auction. The petitioner had further filed an application seeking dispensation of prior notice to defendants/ respondents herein required to be issued in terms of section 48 of The Jammu and Kashmir Development Act, 1970. 5. The matter came to be considered by the trial court on 5th March, 2019 and upon consideration the order of status-quo was passed in respect of the subject matter of the suit. 6. After having been served with a notice the defendants/ respondents herein appeared and filed their written version on 5th April, 2019, along with an application for vacation of status quo order dated 5th March, 2019. The respondents/ defendants raised a preliminary objection in the written statement about the maintainability of the suit and also submitted their parawise reply. The respondents had raised a preliminary objection: “2/-That the suit has been filed in gross violation of Sec.48 of J&K Dev. The respondents/ defendants raised a preliminary objection in the written statement about the maintainability of the suit and also submitted their parawise reply. The respondents had raised a preliminary objection: “2/-That the suit has been filed in gross violation of Sec.48 of J&K Dev. Act 1970 and as such is not maintainable and is liable to be dismissed on this count alone. 3/- That the plaintiff has preferred the present suit without any cause of action against the answering defendants and as such the suit is liable to rejected under Order 7 Rule 11 CPC” The respondents/ defendants before the trial court had taken a stand in the written version that for the space in question which is intended to be grabbed by the petitioner/ plaintiff therein the respondents/ defendants therein have received many applications and the petitioner is one of such applicants who wants to grab the space only on the basis of having filed an application for allotment, however, the respondents have auctioned the site in question in terms of the applicable rules. The respondents had further pleaded in the written statement that the case in hand is a classic example of abuse of process of law. The defendants/ respondents herein had further pleaded that the petitioner, prior to filing of the suit in question had filed one more civil suit before the Court of Municipal Magistrate, Srinagar, wherein the court had issued notice to the respondents and the petitioner upon having failed to obtain an order of status quo left the suit unattended and filed a fresh one on the same grounds before the trial court. The defendants/ respondents herein also had taken a plea that the suit has been filed in gross violation of Section 48 of the J&K Development Act, 1970 and as such is not maintainable. 7. On the averments recorded in the written statement and taken note of, in brief, hereinbefore, the defendants/ respondents herein had sought dismissal of the suit. 8. The defendants/ respondents herein also had taken a plea that the suit has been filed in gross violation of Section 48 of the J&K Development Act, 1970 and as such is not maintainable. 7. On the averments recorded in the written statement and taken note of, in brief, hereinbefore, the defendants/ respondents herein had sought dismissal of the suit. 8. During the pendency of the suit the petitioner/ plaintiff before the trial court filed yet another application on 3rd May, 2019, in terms of Section 151 of the Code of Civil Procedure, for short CPC, seeking a direction upon the defendants-non-applicants/respondents herein to start the process of case for the allotment of the suit land in favour of the applicant, which was entertained and while issuing notice to the other side in the said application the trial court fixed the matter for 13th May, 2019. 9. Thereafter, the trial court appears to have dealt with the application filed under section 151 of the CPC by the petitioner herein and disposed of the two applications by a common order dated 9th July, 2019, by merging the order of status quo dated 5th March, 2019, passed in the ad-interim relief application with the order dated 9th July, 2019, and directed the respondents herein to start the process of the case of the applicant for allocation with respect to the subject matter of the land measuring 20x22.8 feet situated at main market Bemina Srinagar under rules within a period of two months from the date of the order. 10. Subsequent thereto the respondents herein have filed an application, on 2nd December, 2019, under Order VII Rule 11 (d) of CPC for rejection of plaint for non-compliance of the requirements of prior notice under section 48 of the Development Act, 1970. 11. The petitioner has, thereafter, filed an execution petition seeking execution of the order dated 9th July, 2019 and the trial court in terms of order dated 1st November, 2019, passed in the execution petition directed the respondents to file status report in light of the order dated 9th July, 2019 by or before next date failing which action warranted under law will be initiated and later on in terms of order dated 02.12.2019 the trial court directed for personal appearance of respondent no. 1 to explain as to why the orders are not being complied with. 12. 1 to explain as to why the orders are not being complied with. 12. Feeling aggrieved of the orders dated 9th July, 2019, and 02.12.2019, the respondents preferred a time barred appeal before the court of learned Principal District Judge, Srinagar. Alongside the appeal the respondents had also moved an application for condonation of delay. The Appellate Court in terms of order dated 19th December, 2019, stayed the operation of order dated 9th July, 2019 of the trial court and directed it not to take any coercive measures against the respondents/ appellants therein and permit them to carry forward bidding process in respect of the space in question wherein petitioner can also participate. 13. Against the order of the Appellate Court the petitioner preferred a civil revision before this court bearing CM (M) no 02/2020; CM no. 159/2020 and this court, in terms of order dated 28.01.2020, set-aside the order of the Appellate Court and directed it to decide the application for condonation of delay first and then dwell on merits of the appeal. 14. The Appellate Court in compliance to the directions of this court supra took up the matter for consideration and decided the application for condonation of delay as also the appeal in terms of order dated 19.03.2020 and set-aside the orders of the trial court dated 09.07.2019 and 02.12.2019. 15. Against the said order of the Appellate Court dated 19.03.2020, the present revision is filed seeking the relief taken note of hereinbefore. 16. Heard learned counsel for the parties. 17. Before recording the submissions of the learned counsel for the parties, the court deems it appropriate to bring on record the other aspect of the case that is conspicuously present in the pleadings of the petitioner. 18. The respondent before this Court is a Development Authority, an autonomous body constituted under and in terms of the Jammu and Kashmir Development Act, 1970, to control, manage and develop the colonies coming within its domain and in exercise of such powers, it issued an Auction Notice No. 27 of 2019 dated 22nd January, 2019, and invited bids for two shop sites at Bemina Road, Srinagar. The petitioner herein had filed an application before the respondents purportedly seeking allotment of one of the auctioned sites. The petitioner herein had filed an application before the respondents purportedly seeking allotment of one of the auctioned sites. The respondents entertained the application and allowed the applicant/ petitioner to participate in the bidding process by handing over him the prescribed application Form bearing no. 90865 dated 11.02.2019. 19. The petitioner, instead of participating in the bidding process rushed to the court of Municipal Magistrate, Srinagar, on 23rd February, 2019, by filing a civil suit against the respondents seeking allotment of the above referred space and the Court of Municipal Magistrate, Srinagar, entertained the suit and issued notice to the other side without issuing any ad-interim relief in favour of the petitioner/ plaintiff therein. Without waiting for the outcome of the said suit, the petitioner, filed another suit on the similar set of facts on the same subject before the Court of learned Sub-Judge, Passenger Tax, Srinagar, on 2nd March, 2019 and the trial court passed an order of status quo on 5th March, 2019, in respect of the subject matter of the suit. The respondents appeared and filed their written version and took all grounds noted hereinbefore with particular reference to the suit having been filed in violation of the mandatory provision of Section 48 of the Development Act. The respondents had further filed an application seeking vacation of the Status quo order dated 05.03.2019. 20. Although the written version and the application seeking vacation of the order of status quo dated 05.03.2019 were taken on record by the trial court yet the same have not been dealt with at all by the trial court when it went on to pass a composite order dated 9th July, 2019, on two applications one filed under Order 39 Rule 1 and 2 and another under section 151 of the CPC directing the respondents to start the process of case of the applicant for allocation with respect to subject matter of the land measuring 20 x 22.8 ft situated at main market Bemina, Srinagar, under rules within a period of two months from the date of the order. 21. The respondents in compliance to the directions of the trial court appears to have followed the rules and opened the bids. The trial court subsequent thereto ordered for filing of status report and the personal appearance of the respondents. 21. The respondents in compliance to the directions of the trial court appears to have followed the rules and opened the bids. The trial court subsequent thereto ordered for filing of status report and the personal appearance of the respondents. The trial court thereafter issued bailable warrants of arrest against the Vice Chairman, Srinagar Development Authority, by rejecting the application for exemption on 21.12.2019. 22. The respondents also appear to have filed an application for rejection of the plaint in terms of Order VII Rule 11 (d) of the CPC for having been filed in violation of Section 48 of the Development Act, which, for facility of reference, is reproduced hereinbelow: “48. Notice to be given of suits. (1) No suit shall be instituted against the Authority, or any member thereof, or any of its officers or other employees, or any person acting under the directions of the Authority or any member or any officer or other employees of the Authority in respect of any act done or purporting to have been done in pursuance of this Act or any rule or regulation made thereunder until the expiration of two months after notice, and in any other case, delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff and unless the plaint contains a statement that such notice has been so left or delivered. (2) No suit such as is described in sub-section (1) shall, unless it is a suit for recovery or immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.” 23. This is the narration as regards the proceedings of the case before the trial court. This is the narration as regards the proceedings of the case before the trial court. Now when the orders of the trial court dated 9th July, 2019 and 2nd December, 2019, were challenged by the respondents through the medium of appeal, the appellate court in compliance to the directions of this Court to decide the application for condonation of delay in the first instance and then go to the appeal, considered the matter and passed a detailed order dated 19th March, 2020, and allowed both the limitation petition and the appeal by setting aside the orders impugned with a direction to the trial court to proceed with the suit in accordance with law taking into consideration the preliminary objections, if any, raised by the appellants/ respondents herein in their written statement and frame a preliminary issue if it is so required for determination after giving opportunity of hearing to both the parties. Against the said order of the appellate court the instant revision petition is filed. 24. Ms Asma Rashid, learned counsel for the petitioner, submits that the order impugned is passed without proper application of mind and without considering the objections of the petitioner filed in opposition to the application for condonation of delay. She further submits that the order impugned has been passed by the Appellate Court in disregard of the order of this court passed in the civil revision supra as the petitioner was not given an opportunity to file his objections to the appeal and make submissions in opposition to the appeal, thereby, depriving him of the opportunity of hearing. 25. The learned counsel for the petitioner, further refers to sub-section (2) of Section 17 of the Development Act to indicate that the respondents in exercise of the powers conferred by the said sub-section, could allot the land in question to the petitioner and that having not been done, the respondents have prejudiced the rights of the petitioner. The learned counsel submits that since the appellate court failed to take note of this important aspect of the matter, therefore, the impugned order passed by the Appellate Court deserves to be set-aside. 26. Learned counsel for the petitioner further submits that by the impugned order the Appellate Court has granted the main relief to the respondents, thereby, rendering the suit before the trial court infructuous. She submits that the impugned order is unreasonable and mechanical. 26. Learned counsel for the petitioner further submits that by the impugned order the Appellate Court has granted the main relief to the respondents, thereby, rendering the suit before the trial court infructuous. She submits that the impugned order is unreasonable and mechanical. She, therefore, prays that the impugned order be set-aside and the trial orders be left un-interfered. 27. Mr Zubair Ahmad, learned counsel for the respondent-SDA, while resisting the claim of the petitioner submits that the petitioner, has concealed the material facts from this court, therefore, he does not deserve any protection from the law. He submits that the petitioner cannot, merely on the basis of having filed an application seeking allotment of the suit land, be allotted the land in question in disregard of the Rules as he is not, by any stretch of imagination, vested with any right much less an indefeasible right over and above other similarly placed aspiring applicants who also seek allotment of the said piece of land. 28. Learned counsel for the respondents submits further that the trial court failed to appreciate that the suit land, a public property, cannot just be handed over to someone in disregard of the Rules occupying the field. He further submits that although the respondents filed two applications, one seeking vacation of the status quo order and the other seeking rejection of the plaint for non-compliance of section 48 of the Development Act, 1970, but the trial court did not consider these applications nor was anything said about these applications in the orders impugned before the Appellate Court. 29. Considered the submissions made and went through the entire material made available including the trial court records. 30. I would refrain from making observation as regards the maintainability of the revision petition against the order of the Appellate Court which did not close the subject or end the proceedings but would rather decide it on the basis of the pleadings of the parties. 31. The attack to the order impugned is made on twofold grounds; i) that it did not provide an opportunity of resisting the claim of the appellants in the appeal to the petitioner/ respondents therein; ii) that it is passed in disregard to sub section (2) of Section 17 of the Development Act, 1970. 32. 31. The attack to the order impugned is made on twofold grounds; i) that it did not provide an opportunity of resisting the claim of the appellants in the appeal to the petitioner/ respondents therein; ii) that it is passed in disregard to sub section (2) of Section 17 of the Development Act, 1970. 32. The first ground of attack that the Appellate Court did not provide opportunity of resisting the claim made in the appeal fails for the reason that the Appellate Court has taken up, considered and decided the matter in compliance to the directions passed by this Court in Civil Revision Petition, bearing CM(M) no.02/2020; CM no. 159/2020 and the only direction issued to the Appellate Court in such petition was to decide the limitation petition in the first instance and then decide the appeal which does not, by any stretch of imagination, would mean that the Appellate Court was restricted to decide both with a composite order. Even otherwise, it appears that the Appellate Court while passing the impugned order has threadbare discussed the subject and recorded all the submissions which had relevance for determination of the limitation petition as also the appeal. Having said that the first ground taken in opposition to the impugned order fails, therefore, is rejected. 33. The second ground of attack that the impugned order has been passed in violation of sub section (2) of Section 17 of the Development Act also lacks force as it does not provide any protection to the individuals like petitioner to seek allotment of State land sought to be encroached upon by him by any means whatsoever. The sub section (2) of Section 17 of the Development Act, reads as under: - “17. Disposal of land by the Authority. - (1)…. The sub section (2) of Section 17 of the Development Act, reads as under: - “17. Disposal of land by the Authority. - (1)…. (2) The powers of the Authority with respect to the disposal of land under sub-section (1) shall be so exercised as to secure, so far as practicable, that persons who are living or carrying on business or other activities on the land shall, if they desire to obtain accommodation on land belonging to the Authority and are willing to comply with any requirements of the Authority as to its development and use, have an opportunity to obtain thereon accommodation suitable to their reasonable requirements on terms and settled with due regard to the price at which any land has been acquired from them: Provided that where the Authority proposes to dispose of by sale any land without any development having been undertaken or carried out thereon, it shall offer the land in the first instance, to the persons from whom it was acquired, if they desire to purchase it subject to such requirements as to its development and use as the Authority may think fit to impose.” 34. The learned counsel for the petitioner appears to be misinterpreting the above referred to provision of law as it envisages that persons, who are living or carrying on business or other activities on the land, shall have an opportunity to obtain accommodation on the terms settled at the price at which any land has been acquired from them; meaning thereby, that the Authority while proposing to allot any land shall offer the land, in the first instance, to those from whom it was acquired and not the likes of the petitioner who did not own any land which had been acquired by the authority to project a preferential right in terms of the aforesaid provision of law. The above referred provision of law only provides preferential right to those from whom the Authority acquired the land proposed to be allotted in favour of aspiring applicants. In that view of the matter, the second argument raised by the learned counsel for the petitioner also fails and is rejected as such. 35. The Court feels constrained to make certain observations in respect of the manner in which the trial court has proceeded with the case in hand. In that view of the matter, the second argument raised by the learned counsel for the petitioner also fails and is rejected as such. 35. The Court feels constrained to make certain observations in respect of the manner in which the trial court has proceeded with the case in hand. Very rarely would one see as glaring and manifest abuse of process of law at the face of the court proceedings as is being seen in this case. The trial court while adjudicating upon the case has gone too far, to say the least. It is quite surprising that an individual approaches the court to seek a direction in the name of a State Agency to allot him a piece of State land at a place which is highly valuable from commercial aspect merely on the ground that he has applied for it and is ready to abide by the terms as would be laid down in the allotment order and the court, in absolute disregard to all the rules and laws on the subject not only proceeds to entertain such vague plea, issues process against the State Agency but also orders an order of status quo with respect to the subject matter of the suit. The trial court does not stop here also; it proceeds to seek implementation of such order by resorting to coercive methods to pressurize the authorities to file compliance of such illegal order. The trial court does not require to be reminded that there is a set procedure provided for allotment of state land and none is clothed with a right to be necessarily allotted a piece of state land merely one applying for it unless he/she satisfies the requirements of the applicable Rules. 36. True it is that the courts enjoy inherent powers under section 151 of the CPC but such powers cannot and must not be construed to be used for facilitating a wrong. The power of the court is required to be exercised well within the cannons of law to uphold the rule of the law and not vice versa. 37. 36. True it is that the courts enjoy inherent powers under section 151 of the CPC but such powers cannot and must not be construed to be used for facilitating a wrong. The power of the court is required to be exercised well within the cannons of law to uphold the rule of the law and not vice versa. 37. There is no provision contained in the Development Act which provides for dispensation of the requirement of notice as required under section 48 of the said Act, therefore, there is no room even for a presumption that the requirement of the notice might be dispensed with by the trial court before passing the orders which were challenged by the respondents in the appeal. The presumption gets farther for the reason that it does not find support from the record called for perusal. One wonders as to how the trial court has passed an ad interim order without first deciding the preliminary objection raised by the respondents as contained in their written statement filed in opposition to the suit. Not only that, the respondents have separately also filed an application seeking rejection of the plaint which they were not at all required to do after having taken such plea very specifically in the written statement. But yet the trial court did not, ironically, address this issue. 38. For all what has been said hereinbefore, the court is of the considered view that the revision petition is not maintainable, therefore, is dismissed along with connected CM(s). Interim direction, if any, shall stand vacated. 39. The trial court is directed to take up the matter and decide the same on merits by first taking up the application filed by the respondents before it in terms of Order VII Rule 11 (d) of the CPC for rejection of the plaint and the application seeking vacation of the order for non-compliance to provisions of Section 48 of the Development Act.