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2022 Supreme(J&K) 167
In The High Court of Jammu and Kashmir and Ladakh at Jammu
Rajnesh Oswal, J.
Virender Salgotra and Others – Appellant
Versus
Union of India and Others – Respondent
WP (C) No.1853/2019 (O&M) c/w OW104 No.27/2016 (O&M)
Decided on : 1-7-2022
Appearing Counsel:
For the Appellant(s):Mr. Anil Sethi, Advocate in WP (C) No.1853/2019 (O&M)
For the Appellant(s):Ms. Zoya Bhardwaj, Advocate in OW104 No.27/2016 (O&M)
For the Respondent(s): Mr. Vishal Sharrma, ASGI
IMPORTANT POINT : It is intention of parties that is required to be considered, in order to determine as to whether document is lease or license.
Headnote:
[OW 104 No.27/2016 (O&M)]
Constitution of India – Article 227 – Dismissal of application for grant of temporary injunction in suit – Petitioners have miserably failed to make out prima facie case in their favour to demonstrate that deeds entered into between petitioners and respondents were lease deeds and not licence deeds and while returning said finding appellate court has observed that terms and conditions of document would show that petitioners have been given shops for sale of specified items and they have no personal right in said shops and cannot make any alterations etc. in shops licensed out to them – Both trial court as well as appellate court have rightly come to the conclusion that petitioners have failed to make out a prima facie case in their favour and said findings duly substantiated by reasons, cannot be termed as perverse – Petitions dismissed. (Paras 12, 15 and 16)
[WP (C) No.1853/2019 (O&M)]
Agreements placed on record cannot be considered as lease deeds – Otherwise also, if documents are considered as lease deeds even then petitioners have no right to remain in occupation after expiry of period of 11 months – In view of absence of any subsequent pleading thereby denying that shops in question are not regimental shops and also taking into consideration categoric stand of respondents that shops those were given on license basis to petitioners are regimental shops, plea of petitioners rejected – No factual foundations have been laid by petitioners in present writ petition that shops allotted to them were not regimental shops but formed part of shopping complex and in absence of such factual foundations laid in writ petition, same cannot be considered – Petitions dismissed. (Paras 10, 11, 12 and 15)
JUDGMENT :
OW104 No.27/2016 (O&M)
This petition has been filed under Section 104 of the Constitution of the Jammu and Kashmir (now 227 of the Constitution of India) for quashing the order dated 15.03.2016 passed by the learned District Judge, Udhampur (hereinafter to be referred as the appellate court) whereby appeal filed by the petitioners against the order dated 20.01.2016 passed by the Sub Judge, Udhampur dismissing the application for grant of temporary injunction in suit titled, “G. L. Mittal vs Union of India”, has been dismissed, thereby upholding the order dated 20.01.2016.
2. The petitioners have impugned the order dated 15.03.2016 on the grounds that learned appellate court has exercised the jurisdiction in an illegal manner by ignoring vital documentary evidence, that clearly demonstrated that there was relationship of lessor and lessee between the parties. Further even if it is assumed that there was relationship of licensor and licensee between the parties, even then the license was irrevocable in nature.
3. The respondents have filed the objections, wherein besides raising preliminary objections with regard to the maintainability of the petition, have stated that the petitioners were the licensees with regard to few shops situated in different areas of 71 Sub-Area, Northern Command Headquarter at Udhampur and were granted licences for a period of 11 months only. The said licence deeds came to be executed as per the standard operating procedure prescribed by the Government of India which authorises all the officers and the units to execute only the licence deed and prescribe various acts and deeds to be done by the licencees which includes the time within which the shops can be opened, the type of business, licence fee and various other acts including the handing over of the premises after the expiry of the licence period. All these conditions make it clear that the respondents could give the shops to the petitioners only on licence basis and there could not be any other meaning, express or hidden, which could be inferred from the said deeds and the acts of the parties. The license deeds, as per section 52 and 54 of the Easements Act make it clear that the deeds were license deeds, which were executed with full knowledge and consent of the petitioners and they were bound to hand over the vacant possession of the shop after the expiry of the licence period and in the absence of any extension. After the expiry of the licence period, the respondents started process for the execution of fresh license deeds and the petitioners were also eligible for participation in tender process but instead of doing so, the petitioners filed the suit before the trial court. It is also submitted that there is no error of fact or law that necessitates the exercise of power under section 104 of then Constitution of J&K, as the judgements of the trial court as well as appellate court are sound judgements.
4. Ms. Zoya Bhardwaj, learned counsel for the petitioners has vehemently argued that there is relationship of lessor and lessee between the parties which is substantiated by the notice dated 17.01.2015. She further contented that both the courts have not considered the vital documentary evidence evidencing the relationship of lessor and lessee between the parties. She laid stress that the learned appellate court has failed to exercise jurisdiction vested in it and as such, the order impugned is required to be set aside.
5. Mr. Vishal Sharma, learned ASGI has vehemently argued that the petitioners were licensees of the respondents and after expiry of license, they have no right to remain in occupation and the respondents in fact want to perpetuate their illegal occupation by filing the suit on the basis of false and frivolous grounds. He further argued that there are concurrent findings of facts by the two courts and there is no jurisdictional error on the part of the appellate court.
6. Heard and perused the record.
7. The facts necessary for
