Back
2013 Supreme(J&K) 74
JAMMU & KASHMIR HIGH COURT
M.M.Kumar; CJ, Hasnain Massodi, JJ.
Ex.Officer, Srinagar Municipality -Appellant
Versus
S.K.Clinics & Ors. -Resopndent
LPAOW No. 171/2001 & CMA No. 206/2001
Decided On : 06-02-2013
Mr. Sumeer Pandita, Advocate vice Mr. K.L. Pandita, Advocates for the Appellant.
Mr. M.K. Raina, Advocate for the Respondents.
The main legal point established in the judgment is that a lease comes to an end with the destruction of the leased out property, and in such a situation insistence on adherence to procedure would be contradiction and not tenable.
Headnote:
Lease - Property Rights - Jammu and Kashmir House and Shops Control Act 1967 - Section 1(3)(iv), Section 2(6) - The court held that the lease came to an end with the destruction of the leased out property, and in such a situation insistence on adherence to procedure would be contradiction and not tenable. The lease outlived its life and came to an end by efflux of time. The respondents did not have any right to maintain, let alone succeed in the writ petition.
Fact of the Case:
The Srinagar Municipality allotted shops to respondents for a fixed term of 17 years. The shops were destroyed in a fire mishap, and the Municipality proposed to reconstruct and lease them to fresh allottees. The respondents filed a writ petition seeking restoration of the property.
Finding of the Court:
The court found that the lease came to an end with the destruction of the leased out property, and the respondents did not have any right to maintain the writ petition.
Issues: The main issue was whether the respondents had any right to maintain the writ petition seeking restoration of the property after the lease came to an end due to destruction of the leased out property.
Ratio Decidendi: The court held that once the subject matter of a lease is destroyed, the question of eviction of lessee therefrom does not arise, and the lease comes to an end. The respondents did not have any right to maintain the writ petition after the lease came to an end by efflux of time.
Final Decision: The Letters Patent appeal was allowed, and the Writ Court Judgment was set aside.
1. Srinagar Municipality, in the year 1977, through its Executive Officer, allotted four shops in Blocks "A", "B" and "C" of its Shopping Complex at Iqbal Park opposite Naaz Cinema, Srinagar, one each to Sh. Jagdish Lal and three others-respondents herein, on a rent of Rs, 275/- per month. The parties duly executed the lease agreements wherein terms and conditions of the lease were set out. The lease was for a fixed term of 17 years from the date of execution of the lease agreement and was to come to an end on expiry of period fixed.
2. The shops allotted to the respondents were destroyed in a fire mishap on 21.08.1990. The occurrence led to registration of case FIR No. 175/90 under Section 436 RFC at Police Station, Sherghari, Srinagar. The Executive Officer, Srinagar Municipality, on 30.07.1994 issued a Public Notice stating therein that three build#31;ings owned by Srinagar Municipality identified as Block A, B and C were com#31;pletely damaged in fire incident in 1990, that the shops allotted to the respondents were also damaged in fire incident and that as there was likelihood of the damaged property being mis-used and encroached upon, the Municipality proposed to protect the property and make it useful. Anyone having any objection to the reconstruction of the damaged property, was given opportunity to submit objec#31;tions to the proposal within two weeks from the date of publication of the Public Notice, whereafter, any objection raised was not to be entertained.
3. The appellants, after none, including the present respondents, came forward to oppose the proposal, proceeded with the proposed construction and after reconstruction leased out the reconstructed shops to fresh allottees subject to the conditions laid down in the agreement executed with them.
4. Respondents on 05.02.1996 filed a writ petition being OWP No. 99/96, pleading therein that they were constrained to migrate from the Valley because of the militancy and continued to be in possession of the shops leased out in their favour on the date of filing of the writ petition. Respondents complained that the appellant in league with a few persons were keen to illegally occupy the leased out premises. They claimed to have earlier addressed a representation to the Chief Secretary of the State, Director General of Police, Deputy Inspector General, Jammu and other officers.
5. Respondents on the strength of the averments made in the petition, sought following relief:-
(i) A writ of mandamus commanding the respondents not to evict the petitioners from leased out shops i.e No. 7 Block-A, No. 12 Block B, No. 2 & 3 in Block C.
6. The appellants opposed the writ petition on the grounds that the subject matter of the writ petition was destroyed in fire incident in the year 1990 and the rights of the respondents, if any, over the property in question, ended once the subject matter of the lease got destructed and ceased to exist. It was further pleaded that the respondents having failed to deposit the rent for three consecutive months the lease was determined on said failure. The appellant next contended that as the lease was for a fixed term of 17 years, it came toan end by efflux of time much before the writ petition was filed and the petition, therefore, was not maintainable. It was pleaded that the shops in three buildings after re-construction were allotted to S/Shri Hamid Ullah Shah, Mushtaq Ahmad Wani, Mushtaq Alimad Shah, Haji Abdul Rashid, on the terms and conditions laid down in the lease agreements executed by the allottees in favour of the appellants and that the fresh allottees had taken over the possession of the°shops allotted to them before the respondents came up with the writ petition.
7. S/Shri Hamid Ullah Shah and three other allottees of the reconstructed shops were arrayed as a party respondents 4 to 7 at the instance of the respondents vide order dated 20.05.1998. The respondents, accordingly amended the writ peti#31;tion and sought following
