Mohammad Yousuf Sopori vs Ut Of J & K And Ors
2025 Latest Caselaw 18 J&K/2

Jammu & Kashmir High Court - Srinagar Bench

Mohammad Yousuf Sopori vs Ut Of J & K And Ors on 5 May, 2025

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

                                                                                          Serial No. 15
                                                                                          REGULAR LIST

                           IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                              AT SRINAGAR
                                                LPA 290/2019 in[OWP 1187/2009]

                       MOHAMMAD YOUSUF SOPORI                                 ...Petitioner/Appellant(s)

                       Through: Mr. M. M. Dar, Advocate with
                                Mr. Zaffar Mehdi, Advocate &
                                Mr. Umar, Advocate
                                                       Vs.

                       UT OF J & K AND ORS.                                             ...Respondent(s)

Through: Mr. Bikramdeep Singh, Dy. AG with Ms Nowbahar, Khan, Assisting Counsel CORAM:

HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE

ORDE R 05.05.2025

Per Sanjeev Kumar-J (Oral):

1. This Intra Court Appeal by the appellant is directed against an order and judgment dated 2nd April, 2019, passed by the learned Single Judge of this Court ["the Writ Court"] in OWP No. 1187/2009 titled "Mohammad Yousuf Sopori Vs. State of JK and others", whereby the Writ Court has dismissed the writ petition filed by the appellant seeking direction to the official respondents herein to rehabilitate him by providing a shop in any of Shopping Complex constructed by the Government.

2. Briefly put the facts, as are gatherable from the impugned judgment, are that the appellant was running a tea stall in a temporary shed raised by him at old Engineering Complex near Exhibition Road. He had a permission/license from the Srinagar Municipal Corporation, (SMC), to run a tea stall. During widening of the road, various structures including space occupied by the appellant came to be demolished and taken over. On the allegation that similarly situated persons had been rehabilitated by the official respondents, the appellant initially moved a representation before the Divisional Commissioner, Srinagar, which representation was sent to the Chief Engineer, R&B, Kashmir

Srinagar, for taking appropriate action on merits. When no decision

was taken on his representation, the appellant filed a civil suit before the Competent Court of Civil Jurisdiction. The civil suit was not pursued by the appellant and the same came to be dismissed as withdrawn without any liberty.

3. On the same cause of action and for the same relief, the appellant filed OWP No. 813/2006, claiming therein a direction to the respondents to consider and dispose of his representation for his rehabilitation.

Pursuant to an interim order passed on 17.11.2006, in the aforesaid writ petition, direction was issued to the official respondents to consider the case of the appellant. The writ petition was contested by the official respondents, who filed objections and placed on record a consideration order dated 23rd September, 2009, rejecting the appellant's claim. In light of this development, the appellant withdrew the said writ petition with liberty to file a fresh one.

4. This is how OWP No. 1187/2009, came to be filed by the appellant to challenge the consideration order and to seek a direction to the official respondents to rehabilitate him on a par with the similarly situated persons, in particular, respondents 7 & 8. Writ petition was contested by the official respondents, in which a stand was taken that the appellant was never permitted or allowed to raise Khokha on the State land and that he had unauthorizedly occupied the State land and raised temporary wooden Khokha. It was submitted that any license issued under Food Adulteration Act or the number plate issued to him by the SMC would not clothe the appellant with any legitimacy to occupy the State land. It was the stand of the respondents that the appellant was not similarly situated with the private respondents as also the other persons who came to be rehabilitated by providing them shops in the Cheap Market Shopping Complex at Hari Singh High Street, Srinagar.

5. It was further submitted that the persons who were rehabilitated were those in lawful occupation of structures in lieu of payment of T.G. rent to the erstwhile Srinagar Municipality and, thereafter, to the Corporation. They were not unauthorized occupants of the State land and, therefore, found to be genuine beneficiaries of the Rehabilitation Scheme of the respondents.

6. The Writ Court having considered the rival contentions in the light of

authenticity of this document material on record came to the conclusion that the case of the appellant

was not similar or identical to the case of private respondents including those who were rehabilitated in the Cheap Market Shopping Complex at Hari Singh High Street, Srinagar. The Writ Court, therefore, did not find the appellant entitled to rehabilitation under any scheme promulgated by the official respondents. Writ petition was, accordingly, dismissed in terms of the impugned judgment.

7. Before us, learned counsel for the appellant reiterated the arguments which he had made before the Writ Court. Mr. M.M. Dar, learned counsel appearing for the appellant would vehmentically argue that the Writ Court has not appreciated that the persons who were not only similarly situated but had an inferior right viz-a-viz the appellant stood rehabilitated by the official respondents. The plea of discrimination raised on behalf of the appellant was not given due consideration by the Writ Court.

8. Having heard learned counsel for the parties and perused material on record, we are of the considered opinion that the appellant has miserably failed to bring to our notice any material to demonstrate that he was similarly situated with the respondents 4 & 5 or better placed than many who came to be rehabilitated by the respondents in the Cheap Market Shopping Complex at Hari Singh High Street, Srinagar.

9. The respondents had filed an affidavit indicating that the appellant was unauthorized occupant of the State land and had raised a temporary wooden Khokha without any permission from any Authority of the Government. He, therefore, did not satisfy the twin conditions i.e. he was running his tea stall in a wooden Khokha raised by him with the permission and under the Authority of the Government, and that, he was similarly placed with the persons who came to be rehabilitated by the official respondents in the Cheap Market Shopping Complex at Hari Singh High Street, Srinagar.

10. Although, the appellant had pleaded in the writ petition that he was discriminated viz-a-viz the similarly persons situated but had failed to place on record any material in the shape of any document or communication of the respondents indicating unequivocally that persons similarly situated with the appellant or the persons having inferior right viz-a-viz the appellant had been rehabilitated by the

authenticity of this document official respondents. The official respondents have drawn a clear

distinction between the appellant and those who were rehabilitated in the Cheap Market Shopping Complex at Hari Singh High Street, Srinagar.

11. That apart, there is another aspect which has been lost sight of by the Writ Court in that the writ petitions filed one after the other were for redressal of the same grievance and on the basis of same cause of action for which appellant had earlier approached the civil court for seeking a decree of mandatory injunction i.e., to direct the respondents to rehabilitate him on the analogy of similarly situated persons. The civil suit aforesaid came to be withdrawn as dismissed without reserving any liberty to the appellant to file a fresh suit or writ petition.

12. In the face of dismissal of the suit and without there being any fresh cause of action, the writ petition on behalf of the appellant was not maintainable. It seems that with a view to generate a false cause of action, the petitioner approached this Court by way of his first writ petition i.e. OWP No. 813/2006, seeking direction to the respondents to consider and decide his representation, which as per the appellant was pending consideration before the respondents. Pursuant to the interim directions, the case of the appellant was considered and the same was rejected vide consideration order dated 23.09.2009. On the basis of this, so called fresh cause of action, a fresh writ petition i.e. OWP No. 1187/2009 was filed. That being the position, we do not find the conduct of the appellant much appreciable.

13. Be that as it may, since the appellant otherwise does not have any case on merits and, therefore, we are not inclined to entertain this appeal. The appeal is, thus, found to be without any merit and the same is, accordingly, dismissed.

                                 (SANJAY PARIHAR)                             (SANJEEV KUMAR)
                                          JUDGE                                        JUDGE
                         SRINAGAR:
                         05.05.2025
                         "ARIF"