Srinagar, May 20: It is a big question on bosses that why not they adopt one procedure of sealing or desealing of concerns in JKUT as a whole by regularising previous concerns or issue a policy to regularize the issue, otherwise despite lot of court orders of de sealing, copies with Cross Town News, the Govt did not bother to file Apeals in DB or Apex Court to get the issue settled once for all, as it clearly speaks of negative practices as the structure cannot be established a fortnight that after years the bosses wake up & issue orders for sealing of concerns.
However, again in THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR in WP(C) No. 985/2021 CM No. 3179/2021 titled M/S Sheikh Iron Store & Ors. V/s Srinagar Municipal Corporation & Ors. after hearing Hon’ble Mr Justice Ali Mohammad Magrey, Judge. ordered as:-
01. Impugned in this Petition is Order No. SMC/ENF/1642-52 dated 23rd of April, 2021 issued by the Commissioner, Srinagar Municipal Corporation-Respondent No.1, whereby the premises/ plot of the Petitioners situated at Sanag Nagar, Bypass, Opposite Star Hospital, Srinagar, has been sealed and put under the superdari of the Station House Officer, Police Station, Sadder and Ward Officer, Ward No. 32, Srinagar Municipal Corporation.
02. When this matter was taken up for consideration on motion hearing, i.e., on 18th of May, 2021, the Court, after hearing the counsel for the parties, while observing that the power exercised by the Respondent No.1 in issuing the Order impugned, prima facie, was not available with the said authority in the fact situation of the case, sought instructions from the Respondents in the matter through Mr Moomin Khan, learned Standing Counsel representing the Respondent-Corporation and posted the matter on 20th of May, 2021, viz. today.
`03. Today, when the matter came up for consideration, Mr Moomin Khan, the learned Counsel appearing for the Respondents, has submitted the Objections on behalf of the Respondents through Virtual mode, which are directed to be taken on record. Needless to mention here that the copy of the Objections so submitted stands already provided to the learned Senior Counsel representing the Petitioners in advance.
04. Mr J. A. Kawoosa, the learned Senior Counsel assisted by Mr Areeb Javed Kawoosa, learned Advocate, appearing for the Petitioners, submitted that the provision of law under which the impugned Order has been passed, i.e., Section 2.1.2.(b) of the Srinagar Municipal Corporation (Building) Bye-Laws, 2011, is not applicable to the facts and circumstances of the case on hand inasmuch as the said provision deals with sealing of unauthorized buildings, whileas the subject matter of challenge has reference to a premises/ plot used for business/ trade purpose.
05. Mr Moomin Khan, the learned Counsel for the Respondents, while reiterating the averments made in the Objections, submitted that the Petition of the Petitioners is not maintainable on the ground that the Petitioners have the remedy of filing Revision Petition qua the Order impugned available before the Jammu and Kashmir Special Tribunal, however, instead of availing such remedy, the Petitioners have directly approached this Court through the medium of the instant Petition.
It is further submitted that the sealing as ordered by the Respondent No.1 is permitted with the application of Section 324 of the Jammu and Kashmir Municipal Corporation Act, 2000 which envisages that all no premises falling within the jurisdiction of the Srinagar Municipal Corporation can be used for any business/ trade purpose without license.
It is contended that the business activity being undertaken by the Petitioners in the premises in question is specified in sub-Clause (x) of Clause 21 attached to Part-I of Schedule-I to Section 324, running under the caption ‘carrying on the trade or business of or any operation connected with the trade of Metal ferrous or non-ferrous or antimony but excluding precious metal cutting or treating metal by harmoring, drilling, pressing, filling, polishing, heating or by any other process whatsoever or assembling parts of metal’, besides, admittedly, the Petitioners are using the premises in question without license with respect to which the Respondent No.1 has the power to seal the premises.
06. In rebuttal, Mr Kawoosa submitted that the question of maintainability of the Writ Petition is not available to the Respondents as the sealing of the premises of the Petitioners has the effect of curtailing the right of the Petitioners guaranteed under the Constitution of India, violation whereof forms a ground for maintaining the Writ Petition before this Court.
He further submitted that availability of alternate remedy of filing Revision Petition before the Special Tribunal against the Order impugned, too, cannot be a bar for maintaining the Writ Petition before this Court when there is question of jurisdiction involved qua the Order impugned. .
Having heard the learned counsel for the parties and after considering the matter, the Court has come to the conclusion that the grounds urged by the Respondents in their Objections or as urged by the Counsel representing them with regard to use of premises in question being without license do not form the basis of the issuance of the impugned Order by the Respondent No.1.
The basis of the impugned Order, in fact, has reference to Section 2.1.2.(b) which is not applicable to the fact situation of the case and thus, could not have been taken recourse to while issuing the Order impugned of sealing the premises of the Petitioners.
That being so, the Order impugned cannot sustain in the eyes of law on this ground alone. 08. In the above background, the instant Writ Petition is allowed and the impugned Order bearing No. SMC/ENF/1642-52 dated 23rd of April, 2021, as issued by Respondent No.1, hereby quashed.
The Respondents are directed to forthwith de-seal the premises of the Petitioners.
This Order, however, shall not preclude the Respondents in taking any action against the Petitioners as warranted in accordance with law.
09. Writ Petition disposed of on the above terms. Pending applications, if any, shall also stand disposed of accordingly.
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