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2025 DIGILAW 43 (JK)

Suresh Tickoo v. State of J&K

2025-02-18

RAJNESH OSWAL

body2025
ORDER : 18.02.2025 1. With the consent of learned cou nsel for the parties, the matter is taken up for final disposal. 2. The claim projected by the petitioners in the present petition is that their father was a tenant of the shop No. 9, Block C, situated near Bus Stand Pahalgam, Kashmir as the respondent No. 4 had allotted the said shop to the father of the petitioners. The father of the petitioners had paid rent to respondent No. 4 as well and in order to substantiate the said contention, the petitioners have placed on record two rent receipts. It is stated that the father of the petitioners had expired in the year 1999 and the business in the above-mentioned shop was being conducted by the petitioners and their father under the banner of M/s Tickoo Shawl Museum. The petitioners claim to have migrated to Jammu along with families on account of threat perception due to onset of militancy and got themselves registered as migrants under the J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act of 1997 (for short the ‘Migrant Act’). It is urged by the petitioners that the property in question was temporarily allotted to Ghulam Mohi-Ud Din Rather-respondent No. 5 vide order dated 12.07.2002 issued by the Director, Local Bodies, Kashmir. The order clearly refers that the property was a migrant property. The petitioners further claim to have approached the respondent No. 4 numerous times for handing over them the possession of shop in question but when nothing was done by the official respondents, the petitioner filed the present petition. 3. In a nutshell, the claim projected by the petitioners is that they being the migrants are entitled to the possession of the shop which was allegedly allotted to their father and in respect of which, the rent was being paid by their father initially and thereafter by the petitioners. 4. The respondent No. 2 has filed the response stating therein that the petitioner was not the tenant of the property but was a salesman of the Suresh Singh Bakshi S/o. Parkash Singh Bakshi, resident of Srinagar and was employed in the year 1976. He was paying rent on behalf of Suresh Singh Bakshi up to the year, 1990. The shop No. 9, Block C, situated at Bus Stand Pahalgam, Kashmir was allotted to Suresh Singh Bakshi. He was paying rent on behalf of Suresh Singh Bakshi up to the year, 1990. The shop No. 9, Block C, situated at Bus Stand Pahalgam, Kashmir was allotted to Suresh Singh Bakshi. It is also averred that the claim of the petitioner being migrant has no relevance with the subject, as the petitioner is not tenant of respondent No. 4 and further that due to weak financial position of the Committee, the shop in question was allotted to Ghulam Mohi-Ud Din Rather vide allotment dated 12.07.2002 in order to generate revenue for survival of the Committee. The actual tenant Sh. Suresh Singh Bakshi neither ever made any claim nor authorised Suresh Tickoo- petitioner No. 1 herein to sue on his behalf. Precisely the stand of respondent No. 2 is that the matter is not covered by the Migrant Act. 5. Respondent No. 5 has also filed the response stating therein that the shop in question was allotted to him vide order dated 12.07.2002 and the petitioners in order to harass the answering respondent, has filed the instant writ petition. The respondent No. 5 has reiterated the factual aspects of the case as have been narrated by the official respondent No. 2. 6. Mr. C. J. Dhar, learned counsel for the petitioners has argued that the status of the petitioners being tenants of respondent No. 4 is demonstrated by two rent receipts placed on record by the petitioners as such, the petitioners have every right to possess the shop in question as mentioned above. 7. Mr. S. S. Nanda, learned Senior AAG appearing for respondent No. 2 has argued that there is no privity of contract between the petitioners and respondent No. 4 as such, the present petition is not maintainable. 8. Mr. Rahul Raina, learned counsel appearing for respondent No. 5 has argued that the respondent No. 5 has been allotted the shop in question in terms of the allotment order dated 10.07.2002 and he has every right to remain in occupation until and unless respondent No. 5 is evicted in accordance with law by respondent No. 4. 9. Heard and perused the record. 10. The following issues arise for adjudication in this writ petition are as under: (a) Whether the petitioners are the tenants of respondent No. 4 ? 9. Heard and perused the record. 10. The following issues arise for adjudication in this writ petition are as under: (a) Whether the petitioners are the tenants of respondent No. 4 ? (b) Whether the petitioners can get the possession of the shop in question mentioned above by invoking the provisions of the Migrant Act? 11. So far as the first question as to the status of the petitioners is concerned, the petitioners have placed on record two rent receipts demonstrating their status as tenants of the shop in question whereas the paramount title holder i.e. respondent No. 4 has denied the tenancy vis a vis the petitioners qua the shop mentioned above. This is a disputed question of fact, which this Court is not in a position to determine. 12. The other issue is that whether the petitioners can get the possession of the shop in question by invoking the provisions of the Migrant Act. This issue also being a disputed question of fact, as it is alleged by the respondent No.5 that the status of the petitioner as migrants, has got nothing to do with the present controversy, is required be determined the statutory authority. In view of above, this Court is of the considered view that both these issues are intertwined in such a manner that it would be proper if the same are adjudicated by the competent authority, therefore, this writ petition is disposed of by directing respondent No. 2 to consider and decide the claim of the petitioners with regard to the tenancy qua the shop in question mentioned above, in accordance with law. The respondent No. 2 shall afford due opportunity of hearing to the contesting parties while deciding the matter and till the matter is adjudicated upon by respondent No. 2, the possession of respondent No. 5 over the shop in question, shall not be disturbed, provided he continues to comply with the terms and conditions of the allotment during the currency of allotment. 13. Record after perusal is returned to Mr. Nanda in the open court. (RAJNESH OSWAL) JUDGE Jammu: 18.02.2025 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No Rakesh Kumar 2025.03.03 13:21 I attest to the accuracy and integrity of this document