Object Of Jurisdiction Under Article 226 Is Enforcement, Not Establishment Of Right/ Title, Can't Decide Disputed Facts: Jammu & Kashmir High Court

Declining to display indulgence and exercising its jurisdiction under Article 226 of the Constitution, the Jammu and Kashmir and Ladakh High Court recently observed that the object of jurisdiction under Article 226 is the enforcement and not the establishment of right or title and hence a disputed question of fact cannot be investigated in a proceeding under Article 226 of the Constitution.

Justice Javed Iqbal Wani made this important reiteration while hearing a plea in terms of which the petitioner had assailed an order issued by the respondents in terms of which his tenancy with respect to a shop had been terminated.

In his plea the petitioner submitted that he had been allotted a shop by the respondents in 2001. After occupying the shop the petitioner claims he came to know that the allottees/firms had been paying half of the rent which the petitioner was paying.

As a consequence, the petitioner claims he submitted representations before the respondents for constitution of Rent Assessment Committee but the said representations were not considered by the respondents and apprehending forcible eviction from the rented premises at the hands of the respondents, the petitioner obtained status-quo order.

The petitioner further submitted that it was during this period that a Rent Assessment Committee constituted by the respondents asked the petitioner to pay Rs.1,000 per month as tentative rent besides depositing 85,000 on account of rental.

Despite paying the same, the petitioner claimed that respondent was calling upon him to liquidate an outstanding amount of Rs 2 lakh and vacate the premise.

Challenging the eviction order the petitioner submitted that in view of the statutory and legal relationship of tenancy existing between the petitioner and the respondents and without following the procedure prescribed by law, said tenancy could not be terminated in terms of the impugned order as the same otherwise also is violative of Article 14 and 21 of the Constitution.

Per contra, respondents submitted that the Shop had been allotted initially to the petitioner for a period of six months, however the petitioner did not pay regular rentals in respect of the premises as per the statement drawn by respondent. The term of allotment of the petitioner in respect to the premises had not been extended beyond six months and also that the petitioner failed to pay rentals to the respondents and instead chose to file a petition and obtained an order of status-qua therein, on the basis of which the petitioner continued in illegal and unauthorized occupation of the premises for 17 years as against six months allotted period, the respondents countered.

Considering the disputed factual contentions raised by the rival parties, Justice Wani observed that the jurisdiction under Article 226 is discretionary in nature and though no limits can be placed upon that discretion yet it has to be exercised alongwith recognized lines and subject to certain self imposed limitations.

"One of the such self imposed limitations is when a right claimed by the petitioner would require a detailed examination of evidence and is not capable of being established in proceedings under Article 226 of the Constitution as the object of jurisdiction under Article 226 is the enforcement and not the establishment of right or title", the bench underscored.

Observing that the said beaten law on the subject is also attracted in cases of mixed questions of fact and law, the bench maintained that in general a disputed question of fact is not investigated in a proceeding under Article 226 of the Constitution.

Pointing out to the complicated and disputed questions of fact in so far as retention of his allotted premises after the expiry of period of six months stipulated in the order of allotment, the payment/non-payment of rentals of the premises and to the issue of subletting of the premises by the petitioner are concerned, the bench observed that the said disputed question being complicated cannot appropriately be adjudicated upon by it in exercise of discretionary jurisdiction under Article 226.

Resultantly, the petition was dismissed.

Case Title: Zahid Hussain Jan Vs State of J&K

Citation: 2023 LiveLaw (JKL) 67

Counsel For Petitioner: Mr Ateeb Kant.

Counsel For Respondent: Mr Faheem Shah GA

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