GH MOHD PATIGAROO Vs. STATE OF J&K

JUDGEMENT

(1.) THE respondent No. 5 owned a four storeyed building called "New Light Hotel" comprising several shops situated at Sopore near main chowk out of which four shops were under the use and occupation of the petitioners in the capacity of tenants as contended in the writ petition. The building is said to have gutted in a devastating fire on the intervening night of 28th and 29th of September, 2001 terminating the tenancy. Thereafter the parties appear to have entered into an agreement on 12/10/2001 agreeing therein to revive the tenancy. It is this agreement which is relied upon by the petitioners to seek a restraint to be placed on the respondent No. 5 from reducing the dimension of the shops with further prayer to command the said respondent to adhere to the site plan issued by the respondent No. 3. A direction is also sought against the respondent No. 5 to hand over the possession of four shops to the petitioners.

(2.) APPARENTLY a civil dispute is sought to be adjudicated upon by invoking the extra ordinary writ jurisdiction and to bring the dispute within the ambit of the special jurisdiction of this court the petitioners have averred at page 6 of the writ petition : " ....... If the respondent No. 5 does not raise the construction in accordance with the approved site plan and the permission dated 01/01/2002 and instead of four shops he raises some more shops in the ground storey of the building, that is definitely going to effect the rights and interests of the petitioners ......".

(3.) THE averment aforementioned depicts that the respondent No. 5 intends to construct shops exceeding four in number making provision for more business concerns. This course being not acceptable to the petitioners their endeavour is to restrict the number of shops to four only perhaps to confine the business activity in the area to themselves or for any other reason which need not be addressed to because it is quite irrelevant to the issue involved in this petition that is whether terms of the agreement do entitle the petitioners to the relief sought. To answer the question the agreement relied upon by the petitioners assumes significance. Let me assume further that the respondents do not raise any dispute with respect to the execution of the agreement, yet it is to be seen as to what rights accrue to the petitioners out of its terms. I have gone through it. Its plain reading reveals that the respondent No. 5 has agreed to reconstruct the building and let out four shops to the petitioners through Trading Federation Sopore on a rent to be settled by the said Federation, but the agreement does not envisage any embargo which would prevent the respondent No. 5 from constructing the shops as many as he likes nor does it specify any particular dimension for the shops. Taking the condition of the agreement as it is, a right may flow to the petitioners to lay the claim for re -entry but such right may arise subsequent to the erection of the shops and not before and in case any such claim is laid it shall have to be dealt with in the light of the pleadings of the parties and according to law, therefore, I choose to refrain from expression of opinion whether agreement is sound and enforceable in law and to say the least no cause of action is available to the petitioners at this stage for the simple reason that shops have not been erected as on date as per averments made in the writ petition.