GH HASSAN WANI Vs. STATE

JUDGEMENT

(1.) ON 31.12.2003 petitioner herein filed a civil suit before Munsiff, Kupwara pleading that with official approval, he had set up a fair price medical shop within premises of Sub -District Hospital, Tangdhar and alleging that defendants besides withholding regular allotment of space to him were also intending to auction the site for opening of a new shop prayed for issuance of a decree to have himself declared entitled to the allotment along with injunctive relief for having respondents prohibited from conducting auction/opening of tenders if received. In their written statement, defendants while objecting to maintainability of suit also pleaded that the site had been put to auction under a government order where under plaintiff also submitted his tenders and having occupied the shop under reference without proper allotment, he had no cause to agitate against its regular allotment and accordingly sought dismissal of the suit. With that factual conflict the concerned Muinsiff initially directed defendants not to put the shop under reference to auction and confirmed the same vide order dated: 8.7.2004 directing them not to interfere with fair price medical shop of petitioner/plaintiff and restraining auctioning of any portion of the land appurtenant thereto, for establishment of any other fair price medical shop. This order appears to have been challenged by one Sonullah, respondent No.5 herein before Pr. District Judge, Kupwara in a Misc. Appeal, who under appellate order of 27.9.2006 set aside Munsiffs order dated 8.7.2004 leaving defendants at liberty to recommence the process of auction of medical shop under reference and also directed consideration of appellants application for impleadment in the suit.

(2.) IT is this order that is impugned in this revision petition by petitioner/plaintiff on the ground that after allotment of space within hospital premises he himself constructed the structure of shop and was running the same since 2004 as a licensee of defendant/respondents in terms of the rent agreement where under he is required to pay a monthly ground rent of Rs. 150/ - to defendants which he is doing due to which the shop could not be put to auction and as such the learned District Judge erred in setting aside the injunction order passed by learned Munsif and as such failed to examine his jurisdiction properly particularly because the appeal had been preferred by a stranger to the suit who had no right or interest in the matter except having offered his bid during tendering process which did not cloth him with any actionable claim. Respondents have not filed any rejoinder and during course of submissions while petitioners counsel besides elucidating the grounds urged in memo of petition contended that in view of the licence deed executed by official respondents in petitioners favour, the site of the medical shop could not be put to auction because in case the same is allotted to some other person he would be non suited which would badly affect his legal rights under the licence deed particularly because auction of the shop by respondents would not per se terminate the licence. In reply learned counsel for respondent No.5 while submitting that petitioner has tried to project a case in the revision petition, different from the one set up in his plaint before trial court which as such was not maintainable especially because he had also participated in the bid which disentitles him from challenging the process of auction. The counsel for official respondents had added that since no formal allotment had been ordered in petitioners favour he had no cause to agitate against proposed auction of the shop under reference.

(3.) I have heard learned counsel and considered the matter. Perusal of trial court file reveals that on 26.6.2003 the petitioner/plaintiff applied to the then Health Minister for permission to run the fair price medical shop in Sub -District Hospital, Tangdhar who marked it to the BMO with an endorsement "allow the applicant under rules". However, it is not clear as to what was the action taken by BMO, but under a communication dated 18.7.2003 Tehsildar of Karnah appears to have written to Director, Health services Kashmir for allowing petitioner to run a fair price medical shop in Sub -District Hospital complex. Previous to that SHO P/S Tangdhar also informed Director Health Services that he would have no objection if petitioner was allowed to establish the fair price shop as already recommenced by Health Minister. This in sequence appears to have been followed by an auction notice issued by CMO, Kupwara under his communication No. 4006 -09 dated 15.12.2003 seeking bids from retail drug licence holders for space/shops available within premises of Government hospitals of many stations including Sub -District Hospital, Tangdhar and asking for deposit of CDRs of different valuations for different stations the same being Rs. 1.00 lac for Tangdhar hospital with a stipulation that allotment would be for a period of two years only etc. The date of auction, however, appears to have been extended up to 26.12.2003 vide CMOs communication No. CMOK/4667 -71 dated: 19.12.2003. Meanwhile, before concerned Ministers endorsement on petitioners application as already mentioned, the concerned MLA, Karnah who also appears to have been a Minister of State for some department had also recommended his case to concerned BMO who appears to have taken up the matter with Director, Health Services under his No. Estt/268 dated 18.6.2003 recommending petitioners case for permission to run the medical shop within hospital premises. At the same time, however, the trial court file or the records as such do not contain any material to indicate that petitioner/plaintiff was ever allotted any parcel of land for construction of the shop. On the other hand, perusal of materials available on appeal file reveal that under his fact report submitted to concerned CMO, the BMO vide his No. Estt/327 dated: 27.3.2004 appears to have informed that he had "no way but to allow the plaintiff to run the fair price medical shop in the premises of Sub -District Hospital, Tangdhar especially because the shop was constructed by the plaintiff on his own expenses which was mainly the public interest so he was bound to order and allowed him to run the said medical shop with effect from 13.2.2004 purely in the public and state interest". Thus even without a formal order land allotment concerned BMO allowed the petitioner to run fair price medical shop "because the same had been constructed by him" within the hospital premises. The BMO has, however, not mentioned anything to suggest as to whether or not the construction had been made with his permission or the petitioner had done it on his own. The communication clearly reveals that concerned CMO of the District had no information about construction of the shop, under reference by petitioner or commissioning of fair price shop therein. The whole matter as such appears to have been restricted to petitioner and concerned BMO without authentication of any of the higher authorities. During course of submissions petitioners counsel has, however furnished photo copy of a document stated to be a rent deed reportedly executed by petitioner/plaintiff and BMC), Tangdhar after construction of the shop by petitioner under BMOs order No. 1295 -98 dated: 13.2.2004.