FAYAZ AHMAD HAZAR Vs. STATE

JUDGEMENT

(1.) THE Civil First Miscellaneous Appeal has been submitted against the order of the learned Addl. District Judge, Srinagar dated 11 -09 -1998. The record reveals that 25 shops of the Srinagr Development Authority were allotted to the appellants under rehabilitation scheme with the stipulation that each appellant shall pay Rs. 1.90 lakhs towards cost of each shop to the Srinagar Development Authority. The shops were allotted on the condition that the allottee will pay as 40,000/ - in lump sum as the first installment prior to taking possession of the shop, thereafter remit Rs. 12,500/ - in 12 equal monthly installments. In case of a default the allottee could be liable to interest at the rate of 20 percent per -annum on each default. It was also provided that in case of three consecutive defaults the allotment shall stand cancelled.

(2.) IT appears that the appellants made default in payment of the installment after depositing Rs. 40,000/ - and taking over possession of the shops. Subsequently proceedings for recovery of the arrears was initiated under section 90 -91 of Land Revenue Act read with section 36 of Jammu and Kashmir Development Act 1997. Aggrieved by this mode of recovery issued by the respondents suit for declaration and perpetual injunction praying that the order of attachment and recovery be declared null and void was filed by the petitioners. Alongwith the suit an application for temporary injunction was also filed which was considered by the trial court and interim relief was granted vide order dated 11 -08 -1998, but after hearing the parties the learned trial court vacated the interim relief vide order dated 11 -08 -1998. It is validity of this order which has been challenged in the present appeal.

(3.) THE main ground taken in the appeal is that as per agreement, mode of recovery available to respondents was to file civil suit and not to resort to recover arrears under Land Revenue Act. The learned counsel while making submission has placed reliance on the authority of this court reported in SLJ 1991 217 and submitted that since the mode of recovery agreed between the parties was to increase interest on every default and in case of three consecutive defaults, the allotment could be cancelled, the recovery under section 90 -91 of Land Revenue Act is without jurisdiction in view of the agreed mode of recovery, and as such the rejection of the interim relief by the Trial Court was not proper. The appellants have a strong prima facie case because of valid allotment order, they are in possession of the shops, but due to disturbed conditions they are in arrears. Learned counsel for the appellants prayed that the impugned order be set aside.