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2020 DIGILAW 681 (JK)

Shameem Shera v. Ravinder Kumar

2020-12-15

RAJNESH OSWAL, SANJEEV KUMAR

body2020
Judgment Rajnesh Oswal, J.—The present Letters Patent Appeal has been preferred against the orders dated 23.05.2018 and 25.07.2018 passed by the learned writ court in OWP No. 1304/2014. Before adverting to the challenge thrown to the orders impugned, it is necessary to have brief resume of the factual aspects of the matter. Respondent No. 1 filed the writ petition against the predecessor in interest of the appellants, namely, Reyaz Ahmad Sodagar and respondent Nos. 2 to 7 herein and in the said writ petition, respondent No. 1 had pleaded that he had been running a photography studio at Pahalgam under the name and style of M/s R. K. Studio Pahalgam for the last 40 years in a building existing on plot No. 10 situated at Main Market Pahalgam comprising of land measuring 2 marlas and 131 sq. ft. It was also stated that the said plot of land belonged to the State but was initially leased out to one Rehman S/o. Qadir and Majeed S/o. Akram, who sold their lease hold rights in favour of Mohammad Shaban S/o Mohammad Ismail, the father of predecessor in interest of the appellants. It was further stated that the shop was gutted in fire on 08.11.2006 in which besides other buildings, the building existing on Plot No. 10 was also gutted. It was also the case of respondent No. 1 that the predecessor in interest of the appellants had obtained the permission for reconstructing the structure from the Chief Executive Officer, Pahalgam Development Authority, respondent No. 7 herein and there was condition No. 12 in the permission dated 18.01.2006, that stated that the predecessor in interest of the appellants has produced an undertaking on the affidavit registered in the court of law that he will abide by the terms and conditions mentioned in the order of Hon’ble Deputy Chief Minister (Minister Incharge Tourism), undertaking further that the grant of permission shall have no effect on tenant-landlord relationship. It is further pleaded by the respondent No. 1 that after obtaining the permission, the predecessor in interest of the appellants raised the construction at snail’s pace that prompted him to file a suit for mandatory injunction against the predecessor in interest of the appellants in the court of Munsiff, Ashmuqam for enhancement of pace of construction and it was also stated that during the pendency of the suit, the predecessor in interest of the appellants completed the construction of the building but did not handover the possession of the shop to him. The Respondent No.1 did not press the said suit and was dismissed for non-prosecution. The respondent No. 1 filed another suit in court of Munsiff Ashmuqam wherein direction was issued to the predecessor-in-interest of appellants not to dispossess the respondent No.1. As the predecessor-in-interest of appellants failed to comply the condition No. 12 mentioned above, the respondent No. 1 filed the writ petition wherein he sought the following reliefs: “Writ of Mandamus, commanding the respondents therein (predecessor-in-interest of appellants and respondent Nos: 2-7 herein) to take positive steps to dispose of the representation of the petitioner (respondent No: 1 herein) and to ensure compliance of the condition no. 12 of the permission as contained in Annexure-E to this writ petition, wherein it was provided that granting permission shall not have any effect on tenant, landlord relationship. Writ of Mandamus, for committing wilful and deliberation violation of the terms and conditions of the permission as contained in Annexure-E, more particularly condition no. 12 of the permission, appropriate action be taken against the private respondent (predecessor-in-interest of appellants).” 2. A perusal of the record reveals that the said writ petition was considered by the writ court on 19.08.2014 and notices were issued to respondent Nos. 2 to 7 and also to the predecessor in interest of the appellants through registered post on the same day and in the application for grant of interim relief, it was ordered that the respondent No. 7 herein shall ensure that the conditions of the building permission, granted by him, in favour of predecessor in interest of the appellants vide No. 68/BOCA of 2006 dated 08.01.2016 shall be strictly complied with in its letter and spirit and the respondent No. 1 herein be allowed to operate his business in the shop which was under his occupation prior to reconstruction of building. On behalf of predecessor in interest of the appellants, Mr. K. A. Ganaie had filed the power of attorney in the writ petition. The writ petition remained pending from 2014 till 2017 and then an application bearing No. 1/2017 was filed by the petitioner (respondent No. 1 herein) for directing the respondent No. 7 herein for implementation of order dated 19.08.2014 and in the said application, notices were issued to the non applicants therein on 06.10.2017 for 30.10.2017. Thereafter, the mater was adjourned on 30.10.2017 for 04.12.2017 as no one has caused appearance on that day. On 05.04.2018 the matter was again taken up and besides directions for filing reply, the official respondents were directed to report compliance of order dated 19.08.2014 within four weeks and the matter was ordered to be listed on 23.05.2018. On 23.05.2018 the learned Single Judge directed respondent Nos. 3, 4 and 7 herein to appear in person on the next date of hearing along with compliance report and the matter was adjourned for 25.07.2018. In the meanwhile, an application bearing No. 1/2018 was filed by respondent No. 3 herein for dispensing with his personal appearance and the matter was taken up on 02.07.2018. As none had appeared on that day, the matter was adjourned to 04.09.2018. In the meanwhile, on 24.07.2018 a compliance report was filed by respondent No. 7 herein, in which it was stated that the possession of the shop has been handed over to the tenant namely Ravinder Kumar, respondent No. 1 herein in presence of Magistrate (Tehsildar Pahalgam), Station House Officer, Pahalgam and other officers on 16.07.2018 at 2:15 PM. Thereafter, the writ petition was taken up on 25.07.2018. On that day, learned counsel for the petitioner (respondent No. 1 herein) submitted before the learned Single Judge that his grievance stands redressed by the respondent No. 7 herein and the learned Single Judge vide order dated 25.07.2018 disposed of the writ petition as “Settled”. 3. Learned counsel for the appellants has challenged the order dated 25.07.2018 primarily on the ground that the order passed by virtue of which the learned Writ Court disposed of the writ petition as settled, has been passed against the dead person and also that the writ petition was filed by the respondent No. 1 by concealing the material facts from the court, as such, the same was not maintainable. It is also pleaded by the appellants that the writ petition was filed by respondent No. 1 by concealing the material facts regarding the proceedings of the suit filed by him and mis-representation of the facts before the learned Single Judge led to passing of order dated 19.08.2014. It is further pleaded by appellants that they were not aware about passing of the order and it was only when few days prior to the filing of the present appeal, the appellant No. 1 had gone to Pahalgam and found the only entrance to the structure which goes through the shop, has been blocked by the respondent No. 1 on the basis of the order passed by the writ court and the order passed by respondent No. 7 herein. The appellants have further pleaded that the perusal of the compliance report filed by respondent No. 7 clearly reflects that it was stated in it, that the notice was issued to the predecessor in interest of the appellants vide letter dated CEO/PDA/BOCA/1057-60 dated 02.06.2018 but the predecessor in interest of the appellants again did not comply with the directions regarding implementation of the building permission. Instead respondent No. 7 has received a communication from his advocate whereby it has been stated that the predecessor in interest of the appellants had departed from this world on 08.04.2018. It is further contended by the appellants that once the predecessor in interest of the appellants had expired on 08.04.2018 then how the respondent No. 7 could serve a notice on 02.06.2018 upon the predecessor in interest of the appellants and how he could have stated in its compliance report that the predecessor in interest of the appellants did not comply with the order. 4. In this backdrop, the appellants have prayed for setting aside order dated 23.05.2018 as well as order dated 25.07.2018 passed by the writ court and also the order dated 16.07.2018 whereby the respondent No. 7 has sealed the shop and thereafter has handed over the possession of the shop to the respondent No. 1 at the back of the appellants. 5. Mr. M. A. Qayoom, learned counsel for the appellants has also drawn the attention of this Court towards the minutes of the proceedings of the Writ Court and has also laid much stress on the compliance report dated 24.07.2018 filed by the respondent No. 7 herein. 5. Mr. M. A. Qayoom, learned counsel for the appellants has also drawn the attention of this Court towards the minutes of the proceedings of the Writ Court and has also laid much stress on the compliance report dated 24.07.2018 filed by the respondent No. 7 herein. He has further argued that there was concealment on the part of the respondent No. 1 in not bringing to the notice of the learned Single Judge the factum of the death of predecessor in interest of the appellants on 08.04.2018. He has further laid much stress that it was only after predecessor in interest of the appellants had expired, order dated 19.08.2014 passed by this Court was complied with, in terms of order dated 23.05.2018. 6. We have heard learned counsel for the parties and perused the writ court record. 7. From the record, it is evident that the compliance report was filed by the respondent No. 7 on 24.07.2018, relevant portion of which, is reads as under: “03. It is further submitted that the answering respondent has served a final notice upon the respondent No. 7, vide No. CEO/PDA/BOCA/1057-60 dated 02-06-2018, copy is herewith annexed and marked as Annexure-C, but the respondent No. 7, again did not comply with the directions regarding implementation of the building permission. Instead the office of answering respondent has received a communication from his advocate hereunder it has been stated that the respondent No. 7, has departed from this world on 08-04-2018, copy of communication with expired certificate is herewith annexed as Annexure- D & E. 04. It is needless to mention here, that the respondent No. 7, did not comply with the conditions of the building permission issued in his favour vide BOCA Order No., 68/BOCA of 2006, dated 18-01-2006, the answering respondent sealed the structure of the respondent No. 7 on 02-07-2018, vide Order No. 120/PDA of 2018, copy is herewith annexed as Annexure-F. 05. It is further submitted that despite providing a reasonable opportunity to the respondent No. 7 (Landlord/Legal heir), he did not bothered to comply with the directions given to him for implementing the conditions of the building permission and the landlord did not turned up and this office of answering respondent had no option but to hand over the possession of the shop to the tenant as per the conditions of the permission and directions of the Hon’ble High Court. 06. It is pertinent to mention here, that the possession of the shop has been handed over to the tenant namely Ravinder Kumar in presence of Magistrate (Tehsildar Pahalgam) and Station House Officer, Pahalgam, Assistant Executive Engineer, PDA Sub Division Ist and president of the Bapaar Mandal Pahalgam, on 16-07-2018 at 2:15 PM and the signatures of the officers and tenant along with some witnesses were recorded for reference, copy is herewith annexed as Annexure-G.” 8. From the perusal of the record, it is evident beyond any shadow of doubt that the predecessor in interest of the appellants had expired on 08.04.2018 then service of the final notice dated 02.06.2018 (supra) is nothing but a farce and it is beyond human imagination that the notice was served upon the person when he was already dead. It seems that just to wriggle out of the order dated 23.05.2018 the formality of issuance of final notice was performed by the respondent No. 7. No doubt the predecessor in interest of the appellants has also not been diligent enough to contest the writ petition by filing the response to the writ petition but nonetheless, fact remains that the predecessor in interest of the appellants had expired on 08.04.2018 and all the proceedings conducted subsequent thereto have been conducted against the dead person. The least that was expected from the respondent Nos. 1 and 7 was to bring to the notice of the learned Single Judge the demise of the predecessor in interest of the appellants. The respondent No. 1 was also under a legal obligation to bring on record the legal representatives of deceased. But without informing the learned Single Judge about the demise of the predecessor in interest of the appellants, the counsel for respondent No. 1 informed the court that his grievance stood settled in terms of court order and, accordingly, the learned Single Judge disposed of the said writ petition as settled. 9. The order dated 25.07.2018 passed by the learned Single Judge by virtue of which the writ petition has been disposed of as ‘settled’ is not sustainable in the eyes of law because there has been concealment of facts by both respondent No. 1 and respondent No. 7. 9. The order dated 25.07.2018 passed by the learned Single Judge by virtue of which the writ petition has been disposed of as ‘settled’ is not sustainable in the eyes of law because there has been concealment of facts by both respondent No. 1 and respondent No. 7. The respondent No. 7, in particular, has failed in his duty to bring to the notice of learned Single Judge that the predecessor in interest of the appellants had died on 08.04.2018. Had this fact being brought to the notice of the learned Single Judge, the learned Single Judge would not have disposed of the writ petition as ‘settled’, as such, order dated 25.07.2018 passed by the learned Single Judge is not sustainable, and is, therefore, set aside. The matter is remanded back to the learned Writ Court for its disposal under law. 10. In view of absence of challenge thrown to the order dated 19.08.2014, we refrain ourselves from commenting on the merits of the challenge thrown to the order dated 23.05.2018. We, however, grant liberty to the appellants to lay an appropriate motion for recalling of order dated 19.08.2014 as also order dated 23.05.2018 passed by the learned Single Judge in OWP No. 1304/2014, if so advised. The appellants shall also be free to assail the order dated 16.07.2018 passed by the respondent No. 7 before the learned Single Judge. 11. Registry to list the writ petition after proper notice to the parties within two weeks.