HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR OWP No. 391/2005 Pronounced on : 09.05.2025 Ms. Sabiya Tariq D/O Kh. Ghulam Anma, RIO Nalabal, Nowshehra, Srinagar. …. Petitioner/Appellant(s) Through:- Mr. Z.A.Shah,Sr. Advocate with Mr.A.Hanan, Advocate. V/s 1.State of Jammu and Kashmir, Through Chief Secretary, Civil Secretariat, Srinagar. 2.Sheri Kashmir National Medical Institute Trust, Through Dr. Muhammad Ali Mattoo, (Vice Chairman) S/O Kh. Aziz Shah Mattoo R/O Solomon Heights Gupkar Road, Srinagar. 3.Director Health Service, Kashmir, Old Secretariat, Srinagar. …..Respondent(s) Through:- Mr.Mubashir, Dy. AG with Ms.Shaila Shameem, Assisting Counsel. CORAM : HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE JUDGMENT 01. In the present petition, petitioner has sought the following reliefs:- “a) it be declared that the act of the government (respondent No. 1) in taking over the possession of Kashmir Nursing Home on the intervening night of 22/23.7.2003 is bad in law as it had no jurisdiction to take over the property without recourse of law and in which the petitioner had become irrevocable licensee; b) it be declared that taking over of Kashmir Nursing Home in breach of agreement dated 12.5.2003 and or without payment of compensation to the petitioner for the huge amount which she had invested in the Nursing Home was bad in law and violative of the constitutional provisions; OWP No. 391/2005 c) by an appropriate writ direction or order including a wit in the nature of mandamus respondents be directed to restore possession of the Kashmir Nursing Home to the petitioner and or to compensate the petitioner for the property acquired by the respondents; 02. The case setup by the petitioner is that in the intervening night of 22/23.7.2003 the functionaries of the Government, supported by police, forcibly took possession of the entire complex of „Kashmir Nursing Home” asking the staff, engaged by the petitioner, to evacuate the premises immediately. The said action of the Government was founded on Government Order No.820-HME of 2003 dated 22.7.2003. 03. The petitioner is aggrieved of the action of the Government in depriving the petitioner of her right to manage “Kashmir Nursing Home” situates at Gupkar Road, Srinagar. She is further aggrieved of the action of the government in taking over medical equipment fixtures and furniture, drugs and medicines, theater equipment etc. 04. Vide Government Order No. 214-MEof 1976 dated 27.08.1976, the Government ordered transfer of “Kashmir Nursing Home” Gupkar Road to the Sher-i-Kashmir National Medical Institute Trust ( for short „Trust‟) a public charitable trust created by registered deed dated 19.05.1973. Thereafter, vide Government Order No. 820-HME of 3003 dated 22.07.2003, the Government revoked the order dated 27.08.1976 and accorded sanction to the taking over the possession and management of the Kashmir Nursing Home and also taking over the full management affairs of the Trust. 05. Learned senior counsel for the petitioner submits that prior to the taking over of the Trust by the Government in the year 2004, the Board of Trustees of the Trust had leased out the management of the Kashmir OWP No. 391/2005 Nursing Home to her. It is contended that on 30.04.2004, the Chairman of the Trust approved the recommendations of the Board and handed over the Kashmir Nursing Home to her to manage its affairs. According to her, she deposited a huge sum of money for its improvement and in the first instance deposited Rs. 20 lacs with the Trust against a proper receipt. An agreement was drawn between the Trust and the petitioner on 12.05.2003 which was duly registered by Sub Registrar, Srinagar after the management of the Nursing Home was formally taken over by her, she spent 34,48,000 on the civil works and 99,58,166/- on procurement of laboratory, medical and other office equipments and accessories. It is contended that she also paid Rs. 14 lacs to the Trust for the equipment purchased by her from the Trust which was available at Nursing Home at the time of execution of the arrangement. 06. The validity of the Government Order No. 820-HME of 2003 dated 22.07.2003, came to be challenged by respondent No.2-Trust before this Court in OWP No. 468/2003 and the matter was heard by the Hon‟ble Division Bench of this Court. On account of split in the judgment, as each learned Judge took a different view, the matter came to be referred to the third Judge and eventually it was heard by the then Hon‟ble The Chief Justice, S. N. Jha. Hon‟ble Chief Justice, while agreeing with the view taken by Justice V.K.Jhanji, dismissed the petition. Petitioner was not arrayed as a party in the said petition, as according to her, it would have converted the petition in a triangular dispute. It is stated that she has independent rights in the said property based on privity of contract between her and respondent no. 2-Trust. The petitioner seeks the enforcement of her individual rights. It is stated that the respondent No. 2 –Trust is a public OWP No. 391/2005 charitable trust brought into existence in 1973 and various properties were transferred to the trust. The trust renovated Kashmir Nursing Home and converted it into a 40-Bed Nursing home and bore the expense out of the trust fund. The Trust entered into a contract with the petitioner as it needed support to run, manage and operate. 07. The Hon'ble Chief Justice as regards the rights of the Trust in the property (Kashmir Nursing Home) has opined that Government Order dated 19.4.1978 did not in law create any right, title or interest in the property and that for conferring ownership rights it was necessary that a formal document had to be written and registered and the transfer completed in accordance with Section 123 and 138 of the Transfer of Property Act read with Section 17 of the Registration Act. Since it was not so done, therefore, no rights have vested in the Trust. 08. Learned counsel for the petitioner submits that the Hon'ble Court, while holding that no right is vested in the trust, had expressed no opinion regarding the status of the Trust during the years of its holding Kashmir Nursing Home and using it as such. During the said long period the Trust made improvements in the property and was using the property as owner. It is nowhere observed that the Trust could not claim other right in the property like right as a licensee. The Trust possessed rights when it entered into a management contract with the petitioner. The government by rescinding the 1976 and 1978 orders was entitled, if permitted by law, to the restitution of the property in the same manner as it existed in the year 1976 and not in the improved condition which had been brought about by the petitioner consequent to the investment made by her. 09. Learned counsel for the petitioner further submits that the Hon'ble OWP No. 391/2005 Court concluded that the trust was not the owner of the property, but the Government continued to be the owner of the property. The position of the Trust between the years 1976 to 2003 was not that of a trespasser. The property was transferred to it in terms of 1976 and 1978 orders. The Hon'ble Court having concluded that the Government continued to be the owner of the property and the Trust had no vested right in the property, under law, as such, the Government was bound to compensate the party which had made investment in the property and or respected the contract previously entered into by the Trust with the petitioner. It is stated that the Government in law was bound to compare existing value of the super structure, fixtures and furniture, medical equipment etc with value of the property as it was existing in the year 1976. 10. The petitioner has placed on record material evidence to demonstrate that substantial investments were made by her between 12.5.2003 to 22.7.2003 during which as extensive civil works were undertaken. It is submitted that the petitioner has incurred significant debt and had accumulated liability exceeding Rs. 80.00 lacs as of the date of filing this petition. The Government‟s failure to honor the contract and to provide appropriate compensation to the petitioner constitutes conduct that is unreasonable, arbitrary, unconscionable, and contrary to the Constitution and the law. 11. It is contended that petitioner has a right to manage the property in accordance with the agreement dated 12.5.2003. Taking over the property without compensation for the added value is violative of the constitutional provisions. The Government, in law cannot restore the property of which it may be owner, when such property has been improved and value added OWP No. 391/2005 without payment of compensation. The petitioner's right to receive compensation is infringed. It is stated that Respondent No. 2-Trust was running and managing Kashmir Nursing Home from 27.8.1976 till 22.7.2003. During this period at no stage any objection was taken either by the Government or any other authority as regards the transfer and or functioning of the Nursing Home. The Trust had made permanent structures on the property and was managing the same. 12. It is submitted that when the petitioner approached the trust for transferring the management on lease basis, there was no material or any objection as regards the right of the trust to deal with the property including its right to allow management of the Nursing Home by other experts. It is evident that the management of the Nursing Home has been transferred to the petitioner. The trust committed no illegality in working out an arrangement with the petitioner. 13. The petitioner submits that she being a bona fide transferee and having made investment in the property, which has ultimately been taken back by the Government her rights qua the property and the investment are in jeopardy. Her right to manage the property is enforceable against the respondents and if she fails on that count, her right to be compensated for the investment, spent and disbursed cannot be faulted. Respondent No. 2- Trust is bound to either restitute the property and or adequately compensate her. The investment made by the petitioner was not intended to be gratis. 14. Per contra, the respondents have vehemently opposed the reliefs sought in the present petition and have filed their objections. According to the respondents, the relief sought for by the petitioner cannot be claimed because the matter has already been adjudicated upon in the first round of OWP No. 391/2005 litigation which resulted in passing of judgment in OWPs 468/2003 and 1027/2003, whereby the relief sought in the said petitions was rejected by this Court and the Government Order No. 820-HME of 2003 dated 22.07.2003, was upheld, whereby Kashmir Nursing Home was taken over by the Government. It has been further contended that no relief on account of compensation can be claimed as against the respondents in the present petition on the basis of a contract claimed by the petitioner to have been executed with the respondent No.2, because the respondents are not involved in the breach of contract which is a matter between petitioner and respondent No. 2, as such, on this account, the instant writ petition merits dismissal. 15. In the reply, the respondents have further stated that the instant writ petition is hit by the principles of laches and delay as the Government order under challenge has been issued in the year 2003 and the petitioner has thrown challenge to it after more than two years in 2005, so on this score too, the writ petition merits dismissal. Further it is contended that Kashmir Nursing Home is the property of the respondents and the same has been taken over in terms of Government Order (supra) which order was challenged by the respondent No.2 through the medium of above said writ petitions which was considered and heard. There was difference of opinion as the action of the Government was upheld by one and the claim of the Trust was allowed by the other Member of the Bench. Thus, due to difference, split verdict was given by the Division Bench and consequently, the matter was listed before third Judge in terms of Rule 36 of the High Court Rules. Thereafter, the matter was considered and heard by Hon‟ble Mr. Justice S.N.Jha, the then Chief Justice of J & K High Court and His OWP No. 391/2005 Lordship while disagreeing with the Hon‟ble Mr. Justice Syed Bashir-ud- Din and agreeing with Hon‟ble Mr. Justice V.K.Jhanji and the writ petition consequently, was dismissed. As a result of these proceedings writ petition was dismissed and the Government action was declared as legal. 16. In the reply, it has been further contended by the respondents that the petitioner cannot claim any relief or compensation against them through the medium of a writ mandamus on the ground that she had executed agreement with the respondent No.2 for managing/running the Nursing Home, as the respondent No.2 had no power and authority to lease out the property of the Government which was never transferred to them, as such, any contract executed between petitioner and respondent No.2 with respect to the property of the Government, is without any sanction of law and is also void abinitio. Since, the contract is void abinitio, therefore, no claim is enforceable against the respondents, and moreover respondent No. 2 had no power or authority to create third party interest in the property which belongs to the Government. It is settled position of law that one who has no authority to hold property legally, as such, cannot create third party interest in it and cannot as such execute any contract which has no legal sanctity. Lastly the answering respondents in their reply have submitted that the Government has paid huge amount to the erstwhile Trust for renovation/reconstruction of the building, therefore, question of petitioner having invested for super structures as well as she invested any amount for civil works is denied. 17. Heard learned counsel for the parties and perused the material on record. 18. The Government of Jammu & Kashmir Health and Medical OWP No. 391/2005 Education Department vide Government Order No. 820-HME of 2003 dated 22.07.2003 took over Kashmir Nursing Home, Gupkar Road Srinagar and allied matters, pursuant to Cabinet Decision No. 119/Cir dated 22.07.2003. As per the Government order, the Trust had committed various breaches despite notices and warnings to that effect given to it by the Government. Therefore, in the interest of public and patient care and to manage the affairs, sanction was accorded to (i) revocation of Government Order No. 214-ME of 1976 dated 27.08.1976 and Government Other No. Rev(NDK) 90 of 1978 dated 19.04.1978 and taking over the possession of the property and land etc referred to in the said Government orders; (ii) 2) taking over the possession and management of Kashmir Nursing Home Gupkar Road. Srinagar; (iii) Taking over the full management of the affairs of Sher-i-Kashmir Institute of Medical Sciences, Soura and any other institution/institutions affiliated with it; (iv) Taking over the letgal possession of the property situated at Kothi Bagh Srinagar (Dr. Ali Jan Shopping Complex) over which the State Government asserts the lawful title and claims as real owner thereof vis-à-vis those who have raised construction thereon and are in physical possession thereof; and (v) Referring of the matter to the vigilance Organisation for investigating the transfer of the land mentioned here-in-above by the trustees/management of Sher-i-Kashmir National Medical Institute Trust to the parties who have constructed houses and shops thereon and are using it for commercial purpose in breach of the prupose for which it was handed over to the trustees. 19. This Government Order No. 820-HME of 2003 dated 22.07.2003 was challenged by the petitioner in two writ petitions being OWP Nos. 1027/2003 & OWP 468/2003. In the writ petitions following reliefs were sought by respondent No. 2-Trust:- (a) Issue an appropriate writ, direction or order quashing and setting aside Cabinet Decision No. 119/Cir. Dated July 22, 2023; (b) Issue and appropriate writ, direction or order quashing and setting aside Government Order No. 820-HME of 2003 dated July 22, 10 OWP No. 391/2005 2003; (c) Issue an appropriate writ, direction or order commanding he respondents No. 1 to 11 not to interfere with the working of the Trust and with the Trust properties, including the property transferred to the Trust vide Government Order No. Rev (NDK) 90 of 1978 dated April 19,1978 and all other property owned by the Trust; (d) Issue an appropriate writ, direction or order commanding the respondents No. 1 to 11 to return/restore the possession and management of the Kashmir Nursing Home, including the Trust Office, located at Gupkar Road, Srinagar, to the Trust; (e) Issue an appropriate writ, direction or order to the respondents No. 1 to 11 to run the Sher-i-Kashmir Institute of Medical Sciences (SKIMS) and any other institution/institutions affiliated with it in accordance with the terms of the agreement dated 17th December, 1980, through the Governing Body constituted under Clause (5) and other relevant. Clauses of said Agreement. (f) Pass such further on other orders that this Hon’ble Court may deem just and proper in the facts and circumstances of the case.” 20. The writ petitions were considered by the Division Bench, as the subject matter and nature of the petitions involved issues of public interest in the reliefs sought. The Division Bench delivered a split verdict, learned Judge dismissed the petitions, while the other allowed them. Consequently, the matter was placed before a third Judge, the then Hon‟ble Chief Justice S. N. Jha, who, in his judgment dated 07.06.2005, while expressing his opinion on the validity of Government Order No. 820-HME of 2003 dated 22.07.2003, in Para-28 observed the reasons for the impugned action as under: i) “No formal deed of transfer was executed in the light of government order dated 19th April, 1979; ii) The purported transfer of the properties by the 1978 order was without any legal authority and in disregard of the laws; iii) Kashmir Nursing Home was transferred to be used exclusively as nursing home; instead the trust tried to create third party interest; iv) The trust failed to provide adequate representation to the government in the management of Kashmir Nursing Home; v) The trust converted the Drug Research laboratory at Moulana Azad Road, Kothibagh into a commercial complex and transferred the properties to third parties in violation of the government order and the purpose for which the property was transferred to it; vi) The trust committed breaches despite notices and warning; 11 OWP No. 391/2005 vii) Complaints were received alleging neglect and irregularities in patient care and management of the affairs of the Sher-i- Kashmir institute of Medical Sciences, Soura; viii) The trust itself had approached the government in 1995-96 to take over the Kashmir Nursing Home; ix) It was in public interest to take over the properties and their management;” 21. While observing that the moot question for consideration was whether the 1978 order vested any title or interest in the petitioner-Trust. 22. The Hon‟ble Chief Justice, S. N. Jha, held that since there was no valid and complete transfer of land in terms of Sections 123 and 138 of the Transfer of Property Act, read with Section 17 of the Jammu and Kashmir Registration Act, no right, title, or interest in the properties can be said to have vested in the Trust. Clause (e) of the relief portion, wherein the Trust had sought a direction upon the respondents to run the affairs of the Institute in accordance with the terms of the agreement, was also declined. It was held that the relief seeking enforcement of contractual rights cannot be granted by the High Court under its writ jurisdiction. 23. The petitioner is aggrieved of taking over of the possession of Kashmir Nursing Home as bad in law. It is further submitted that taking of Kashmir Nursing Home was in breach of agreement dated 12.05.2003 and without payment of compensation for the investment made. The possession of Kashmir Nursing Home vide Government Order No. 820-HME of 2003 dated 22.07.2003 was upheld by the Division Bench. 24. The Hon‟ble Chief Justice while dismissing the petition, further observed that the petitioner-Trust on its own saying was not in a position to run the Kashmir Nursing Home on its own. The Government had invested Rs. 90.00 lac on its renovation. It was further observed that most of the staff of the nursing home, however, was retrenched, and to cap it, it was 12 OWP No. 391/2005 sought to be handed over to one Sabia Tariq-petitioner herein, a house-wife said to be related to Dr. Mohd Ali Matoo. At page 51, the Hon‟ble Chief Justice observed as under:- “The Kashmir Nursing Home on the own saying of the petitioner, was not in a position to run on its own. It was not equipped with the required expertise, staff and other infrastructure to manage the nursing home on day-to-day basis in accordance with the guideline of the Medical Council of India. The nursing home had been transferred to the trust to accomplish its professed object of rendering medical help to the needy. The government had invested rupees ninety-five lakh on its renovation. Most of the staff of the nursing home, however, was retrenched, and to cap it, it was sought to be handed over to one Sabia Tariq, a house-wife said to be related to Dr. Mohd Ali Matoo. The Drug Research Laboratory had received an even worse treatment. It was situated at Moulana Azad Road, Kothibagh in the heart of Srinagar. It was attached with the nursing home so that the patients admitted therein could get investigation done there. At the time of its transfer, it was represented to the government by Secretary of the trust vide letter dated 5th August, 1977 that it would develop the laboratory in such a way that the people of the State would be able to get thorough investigations under one roof and thus do not have to go out of the State for clinical investigations. What ultimately happened was that it was converted into a shopping complex “to increase corpus donations of the trust” – an object neither envisaged in the government order nor even remotely connected with the professed object. The respondents have stated that the so called corpus donation was really in the nature of premium charged from the prospective tenants for pecuniary benefit of the persons managing the trust.” 25. In the operative part of the judgment at page 57 & 58 the Hon‟ble Chief Justice observed as under:- “In taking the aforesaid view the learned judges referred to various decisions and legal treatises on the subject. On consideration of the facts and circumstances of the case and materials on record, I am inclined to agree with the respondents that even if it is accepted that the opportunity of elaborate hearing should have been given, interference in the impugned order may not be in public interest. The urgency of the action can be visualized from the fact that the transfer of Kashmir Nursing Home in favour of Sabia Tariq was imminent but for impugned action by the government which preempted the proposed action. It is well know that rules of natural justice are not like rigid formulate which can be put in straight jacket, their application depends upon facts and circumstances of the particular case. In the facts of the case I do not find any such breach of rules of natural justice as to justify interference on that ground. Having thus given by anxious consideration to the facts of the case and the contentions raised, disagreeing with Bashir-ud-Din,J, and in agreement with V.K. Jhanji, J., I would dismiss the writ petition but without any order as to costs. Thus, ordered accordingly.” 26. In view of the aforesaid judgment rendered by the then Hon‟ble Chief Justice, S. N. Jha the relief claimed by the petitioner that it be declared that the act of the Government in taking over the possession of 13 OWP No. 391/2005 Kashmir Nursing Home was bad is concerned, the same stands already decided in OWP No. 468/2003, by holding that the taking over of the Trust vide Government vide Order No. 820-HME of 2003 dated 22.07.2003 was valid, the same has attained finality and cannot be re-agitate in the instant writ petition. 27. The other relief sought by the petitioner in the instant writ petition is that Kashmir Nursing Home was taken over in breach of agreement dated 12.05.2003 without any payment of compensation to the petitioner for the huge amount which she had invested in the Nursing Home. The petitioner claims that an agreement was drawn between the Trust and the petitioner on 12.05.2003 and she deposited a huge sum of money for its improvement and in the first instance deposited Rs. 20 lacs with the Trust against a proper receipt. Thereafter, she spent 34,48,000 on the civil works and 99,58,166/- on procurement of laboratory, medical and other office equipments and accessories. It is contended that she also paid Rs. 14 lacs to the Trust for the equipment purchased by her from the Trust which was available at Nursing Home at the time of execution of the arrangement. 28. The Sher-i-Kashmir National Medical Institute Trust, Srinagar through its Vice Chairman Mr. Muhammad Ali Matoo entered into an agreement with the petitioner executed on 12th May, 2003, to provide better medical facility without bringing it to the notice of the Government and in violation of the Government Order dated 27.08.1976. Consequently, the Government intervened to prevent the Nursing Home being handed over to the petitioner. 29. The Trust approached this Court and challenged the validity of the Government vide Order No. 820-HME of 2003 dated 22.07.2003 and this 14 OWP No. 391/2005 Court dismissed the writ petition of the respondent No. 2-Trust by holding that the taking over of the Trust vide the said Government Order was valid. The petitioner has neither chosen to become a party in the aforesaid writ petition nor challenged the validity of the Order No. 820-HME of 2003 dated 22.07.2003. 30. That apart, the petitioner had executed an agreement with the Trust, the Government is not involved in the breach of contract. In fact the petitioner has admitted in her petition that she was awaiting decision in OWP No. 468/2003 which was filed by respondent No. 2. The claim of the petitioner is that she had invested huge amount in the Nursing Home and Government is liable to pay her compensation, though the same is denied by the respondents/State, who claim that they have paid huge amount for renovation and reconstruction of the same. 31. There is no privity of contract between the petitioner and respondent Nos. 1 & 2. The respondents/State had neither entered into a contract with the petitioner nor extended any assurance to the petitioner nor owed any duty or obligation towards the respondents. The action of respondent Nos. 1 & 3 in taking over Kashmir Nursing Home cannot give rise to any public law, remedy to the petitioner, who is a third party against respondent Nos. 1 & 3. The petitioner having not entered into any contract with respondent Nos. 1 & 3 has no enforceable right against the same. It is, however, open to the petitioner to enforceable right against Kashmir Nursing Home, the same cannot be done in writ proceedings. 32. The doctrine of privity of contract provides that a contract cannot confer rights, impose obligation or create any liability on any person, who is not a party to contract. It is true that by virtue of the agreement between 15 OWP No. 391/2005 respondent Nos. 2 and 1 & 3, certain obligations were there but that itself is not a ground for the petitioner to seek compensation from the Government. 33. The Doctrine of Privity of Contract has been explained in L. Shiv Dayal Kapoor and Ors. Vs. Union of India (UOI), New Delhi and Anr, AIR 1963 P&H 538 as under: "16. I may now consider the implications of the rule underlying the doctrine of privity of contract, which means the relationship subsisting between two contracting parties. "Privity" in this context implies a mutuality of will and is an interaction of parties and their successors. It creates a legal bond or tie or a vinculum juris. The rule of privity of contract is that no one but the parties to a contract can be bound by it or entitled finder it. In the words of Pollock, "A third person cannot become entitled by I.A. No.8381/2009 in C.S.(OS) No.203/2009 Page 5 of 22 the contract itself to demand performance of any duty under the contract," 34. The privity of contract exists between the petitioner and respondent No. 2- the Trust, therefore, in the event of any breach of the agreement between the petitioner and respondent No. 2, the only remedy available to the petitioner lies against respondent No. 2. The petitioner ultimately seeks to set aside the Cabinet decision dated 22.07.2003 and is also seeking enforcement of contractual rights arising from the agreement dated 12.05.2003. However, relief in the nature of enforcement of contractual rights cannot be granted under writ jurisdiction. In any case, the claim of the petitioner can only be against the Trust and not against State. Moreover, the present petition involves disputed questions of fact that require a proper trial and the presentation of evidence. Therefore, such matters cannot be adjudicated upon in a writ petition. The petitioner is, however, at liberty to approach the appropriate competent Civil Court for redressal of her grievances, if otherwise permissible under law. 16 OWP No. 391/2005 35. In view of the aforesaid facts and circumstances of the case, this petition is found to be without any merit and the same is, accordingly, dismissed. (Sindhu Sharma) Judge SRINAGAR Ved/Joint Registrar-Secy 09.05.2025 Whether the order is speaking : Yes Whether the order is reportable : Yes BIR BAHADUR SINGH 2025.06.06 15:18 I am the author of this document