Syed Musadiq Shah vs Board of Directors & Ors.

This appeal is directed against the order dated 2nd of July, 2008 passed by First Additional District Judge, Srinagar, whereby and whereunder

application for grant of adinterim relief came to be dismissed, on the grounds taken in the memo of appeal.

Brief Facts of the Case:

It is averred in the plaint that in the month of March, 2008, defendants/respondents appears to have resolved for outsourcing of the management

of the suit property comprised of Gulmarg Hotel situated at Boulevard Road, Dalgate, Srinagar. Plaintiff/appellant submitted his bid in response to

the offer. The defendants/respondents conducted negotiations with the authorized representative of the plaintiff and accordingly, it was agreed by

the plaintiff to pay Rs.19.11 lacs in addition to the security amount of Rs.3.00 lacs which he had already deposited within time and it was further

agreed that formal order shall be issued in favour of the plaintiff/appellant. Plaintiff/appellant while following the terms and conditions deposited

amount of Rs. 19.11 lacs and demand draft of Rs.9,55,500/ and approached the defendants. They expressed inability to receive the drafts in view

of the restraint order passed by this Court in OWP No.284/2008 titled JK Traders Vs. State and others, it is also averred that plaintiff/appellant

was constrained to file application for impleadment but in the meantime, he came to know that defendants/respondents have decided to continue

with the business of their own and also conveyed their intentions to the plaintiff that they are no longer interested in outsourcing the management of

above said property. Feeling aggrieved, plaintiff filed the suit for declaration, permanent injunction and mandatory injunction. Respondents filed

objections/written statement. After hearing learned counsel for the parties, the application for adinterim relief came to be dismissed vide impugned

order.

In terms of order No.125 of 2008 dated 22.05.2008, the notification dated 14.02.2008 came to be cancelled and plaintiff was in know of the

said fact but he has not challenged the same.

It appears that respondents have raised a preliminary objection that civil court is not having jurisdiction to hear and try the suit. The Trial court

after marshaling out the facts and merits of the case, prima facie held that civil court is lacking jurisdiction. This Court in a batch of writ petitions

titled Manzoor Ahmad Wangnoo Vs. State and others, reported as 2007(3) JKJ 388 held as under:

Keeping in view the above discussion, it would thus appear that though the nature and functions of the Board can be said to be of public

importance but no other test laid down by the Apex Court is satisfied. No doubt Board came to be constituted under the Statute and, therefore,

has a statutory status. In absence of any kind of financial, functional or administrative control even an iota of control of the Government, it cannot

be said to be State or an authority within the meaning of Article 12 of the Constitution of India. Thus, it can be safely held that writ petitions for

enforcement of fundamental rights against the Board are not maintainable.

Keeping in view Section 44 to 56 read with order No. 101 referred hereinabove, petitioners have efficacious remedy available. Thus, are

having an alternative remedy available in their armuory.

In view of the decision rendered by this court, it prima facie appears that civil court lacks jurisdiction and the finding returned by the trial court

merits to be upheld.

Even otherwise, the Board/respondents/defendants in its wisdom thought it proper to cancel the notification in terms of order dated 22nd of

May, 2008 which is not the subject matter of the suit, thus no relief can be granted and it can be safely held that plaintiff has failed to carve out a

prima facie case.

If at all the plaintiff was aggrieved of the cancellation order, he could have invoked the jurisdiction of the appellate court. Thus the

appellant/plaintiff was having alternate remedy.

It is also worthwhile to mention herein that whether the contract was concluded or not is not forthcoming from the pleadings of the parties. I am

of the view that trial court has rightly, prima facie, held that the contract between the parties was still short of being concluded.

In the given circumstances, I am of the considered view that trial court has rightly exercised the discretionary power, needs no interference.

Accordingly, the appeal is dismissed along with all connected CMPs. Interim direction, if any, shall stand vacated.

Registry to detach OWP No.284/2008 and list for consideration in next available regular cause list. Send down the trial court record along

with a copy of this order.