Jammu & Kashmir High Court - Srinagar Bench
M/S Sheikh Iron Store & Ors vs Srinagar Municipal Corporation & ... on 20 May, 2021
Serial No. 111
Daily Supplementary List-1
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
{Through Virtual Mode}
WP(C) No. 985/2021
CM No. 3179/2021
Dated: 20th of May, 2021.
M/S Sheikh Iron Store & Ors.
..... Petitioner(s)
Through: -
Mr J. A. Kawoosa, Senior Advocate with
Mr Areeb Javed Kawoosa, Advocate.
V/s
Srinagar Municipal Corporation & Ors.
..... Respondent(s)
Through: -
Mr Moomin Khan, Advocate.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
(JUDGMENT)
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 (SHO),
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
WP(C) No. 985/2021; CM No. 3179/2021
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,
WP(C) No. 985/2021; CM No. 3179/2021
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.
WP(C) No. 985/2021; CM No. 3179/2021
07. 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.
(Ali Mohammad Magrey)
Judge
SRINAGAR
May 20th, 2021
"TAHIR"
i. Whether the Judgment is reportable? Yes/ No.
ii. Whether the Judgment is speaking? Yes/ No.
TAHIR MANZOOR BHAT
2021.05.20 15:54
I attest to the accuracy and
integrity of this document
