Jammu & Kashmir High Court - Srinagar Bench
Dr. Qadri'S Hematology Center & ... vs Commissioner on 31 May, 2021
Serial No. 323
Supplementary-1 List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
{Through Virtual Mode}
CM(M) No.84 /2021; CM No.3184/2021 c/w
WP(C) No.333/2021; CM No.2857/2021
Dr. Qadri's Hematology Center & Clinical Laboratory
... Petitioner(s)
Through:
Mr Salih Pirzada, Advocate.
Versus
Commissioner, Srinagar Municipal Corporation, Srinagar & Ors.
... Respondent(s)
Through:
Mr B. A. Dar, Sr. AAG;
Mr Moomin Khan, Advocate; and
Mr Nisar Ahmad Bhat, Advocate.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
(JUDGMENT)
31.05.2021
01. The subject matter of challenge in the instant Petition filed under
Article 227 of the Constitution of India, being CM(M) No.84/2021, is Order
dated 11th of May, 2021 passed by the Presiding Officer, Jammu and Kashmir
Special Tribunal, Srinagar (hereinafter referred to as 'the Tribunal') in file No.
STS/6242/2021 titled 'Tasleema & Anr. v. Commissioner, Srinagar
Municipal Corporation, Srinagar', in terms whereof the Tribunal has, while
CM(M) No.84/2021 c/w
WP(C) No.333/2021
allowing the Revision Petition of the Respondents 4 and 5, reversed the
sealing Order bearing No. SMC/Enf/23752-54 dated 8th of March, 2021.
02. In the earlier round of litigation, the Petitioner approached this
Court through the medium of Writ Petition bearing WP(C) No.333/2021 with
the grievance that the Respondents 9 and 10 therein have been given freehand
to grab Government/ Nazool land at Karan Nagar, Srinagar and that, despite
repeated requests/ representations from the Petitioner, no action with respect
thereto was taken by the authorities concerned. When the said Writ Petition
came up for consideration before the Court on 26th of February, 2021, the
learned counsel representing the Srinagar Municipal Corporation had
undertaken that the representation of the Petitioner will be considered in
accordance with law. During the pendency of this Writ Petition, while
conducting surprise visit of Karan Nagar, Ali Jan Road and 90 Feet Road, the
Chief Enforcement Officer, Srinagar Municipal Corporation, proceeded to
issue Order under endorsement No. SMC/Enf/23752-59 dated 8th of March,
2021; whereby, besides others, the construction in question was directed to be
sealed in presence of Commissioner, Srinagar Municipal Corporation on spot
and put under the Superdari of the concerned Ward Officer. Thereafter, a
Revision Petition came to be filed before the Tribunal against this sealing
Order dated 8th of March, 2021 by: (i) Tasleema W/o Ansar Ahmad Ahanger;
and (ii) Shagufta W/o Mohammad Ayoub Wani, both residents of Usman
Abad, Bemina, Srinagar, i.e., Respondents 4 and 5 in CM(M) No.84/2021.
CM(M) No.84/2021 c/w
WP(C) No.333/2021
The Tribunal, in terms of Order dated 11th of May, 2021, allowed the Revision
Petition and set aside the impugned sealing Order dated 8th of March, 2021.
Feeling aggrieved thereby, the Petitioner has filed Petition bearing CM(M)
No.84/2021 seeking quashing of Order dated 11th of May, 2021 passed by the
Tribunal.
03. 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, passed an ad interim Order; thereby staying the operation of the
impugned Order dated 11th of May, 2021 passed by the Tribunal insofar as it
directed de-sealing of the premises in question.
04. The Respondent-Srinagar Municipal Corporation (Respondents
1 to 3) have filed their Objections in CM(M) No.84/2021, wherein they have
stated that in order to curb down the unlawful building activities being carried
out by Respondents 4 and 5 and other similarly situated persons, the
Commissioner, Srinagar Municipal Corporation, along with a team of Officers
of the Corporation, conducted a surprise visit of Karan Nagar, Ali Jan Road
and 90 Feet Road, where the construction of single storey shop under the name
and style of 'Chill Out Restaurant/ Cafe' was also sealed on 8th of March,
2021. Thereafter, as stated, the Respondents 4 and 5 took up the matter before
the Tribunal in Revision Petition which came to be disposed of vide Order
dated 11th of May, 2021 directing the Corporation to pass fresh order after
CM(M) No.84/2021 c/w
WP(C) No.333/2021
hearing the parties. It is further submitted that although the matter has been
remanded back to the Corporation by the Tribunal, however, the pendency of
these two Petitions before this Court is forming an impediment for the
Corporation to proceed ahead in the matter so as to take the proceedings to
their logical conclusion.
05. The Respondents 4 and 5 have also filed their Objections in
CM(M) No.84/2021. It is submitted by the Respondents 4 and 5 that they are
having tenancy rights of the premises since the year 2009 and have not raised
any sort of construction on spot. It is pleaded that the Respondent No.2,
without any jurisdiction and authority, sealed the premises on 8 th of March,
2021 without any prior notice as required in terms of the Bylaws of 2011,
compelling them to file Revision Petition before the learned Tribunal and the
Tribunal, rightly, remanded the matter back to the Respondent No.1-
Commissioner, Srinagar Municipal Corporation with direction to pass fresh
orders after hearing the parties. It is contended that the Order passed by the
learned Tribunal, as impugned in the Petition, has been passed in strict
accordance with the procedure governing the subject.
06. Having heard the learned counsel for the parties, coupled with a
perusal of the pleadings on record and after taking an overall view of the
matter, the Court is of the opinion that the issue to be determined herein this
litigation qua the validity of the construction in question under the name and
CM(M) No.84/2021 c/w
WP(C) No.333/2021
style of 'Chill Out Restaurant/ Cafe' situated at Karan Nagar, Srinagar, at this
stage, can better be settled by Respondent No.1-Commissioner, Srinagar
Municipal Corporation, after perusing all the relevant records and hearing the
parties concerned. This is so because disputed claims have been raised by the
parties to the lis and this Court, at this stage, cannot go into a fact-finding
mission so as to ascertain the validity of such disputed claims. The
Respondent No.1, who has all the records pertaining to the issue before it, is
the authority to look into such claims in the light of the available records and
the procedure prescribed by law on the subject.
07. Learned counsel for the parties, in support of their respective
cases, referred to and relied upon various judgments of law as well as invited
the attention of the Court to the relevant provisions of the Jammu and Kashmir
Municipal Corporation Act, 2000 and Srinagar Municipal Corporation
(Building) Bye-Laws, 2011, however, in view of the nature of order to be
passed hereunder, the same, at this stage, do not need to be deliberated upon
which, otherwise, may prejudice the cause of the parties.
08. In the above background, the direction of the Tribunal in
remanding the matter back to the Respondent No.1 cannot be said to be
erroneous, however, till such time the Respondent No.1 passes fresh orders in
the matter, the construction in question cannot be permitted to be de-sealed
either and shall, instead, remain sealed within the Superdari of the Ward
CM(M) No.84/2021 c/w
WP(C) No.333/2021
Officer concerned. Accordingly, the Writ Petition CM(M) No.84/2021 shall
stand disposed of and, in modification of the impugned Order dated 11th of
May, 2021 passed by the Tribunal, the Respondent No.1 is directed to pass a
fresh and reasoned order in the matter qua validity of the construction in
question in accordance with the law governing the subject and after perusing
all the relevant records, uninfluenced with the observations made by the
Tribunal vide the impugned Order. The Respondent No.1 shall, while passing
the fresh order, take into consideration the stand adopted by the parties before
this Court. The Respondent No.1 shall pass the fresh order in the matter within
ten (10) days from today and till then, the impugned construction shall
continue to remain sealed under the Superdari of the Ward Officer concerned,
whereafter, the fate of the said construction shall be governed by the directions
of the Respondent No.1.
09. Insofar as Writ Petition bearing WP(C) No.333/2021 is
concerned, the same shall also stand disposed of with direction to the
Respondent-Srinagar Municipal Corporation as well as the Revenue
Department to consider the grievance projected by the Petitioner therein and
pass appropriate orders thereon after hearing all parties concerned. Pertinent
to note here that Mr Nisar Ahmad Bhat, the learned counsel for private
Respondents, had, during the course of arguments, raised a preliminary
Objection with regard to the maintainability of the Petition on the ground of
locus of the Petitioner, however, in view of the nature of above direction
CM(M) No.84/2021 c/w
WP(C) No.333/2021
passed in the matter, there is no requirement of going into the merit of the said
contention as the private Respondents can well agitate this grievance before
the authority concerned.
10. Both the Writ Petitions shall stand disposed of on the above
terms. Pending applications, if any, shall also stand disposed of accordingly.
11. It is, however, made clear here that this Court has not expressed
any opinion with regard to the merits of the case in both the Petitions.
12. Registry to place a copy of this Order on each file.
13. Copy of this Order be made available to the learned appearing
counsel for the parties under the seal and signatures of the Bench Secretary.
(Ali Mohammad Magrey)
Judge
SRINAGAR
May 31st, 2021
"TAHIR"
i. Whether the Order is reportable? Yes/ No.
ii. Whether the Order is speaking? Yes/ No.
TAHIR MANZOOR BHAT
2021.06.02 11:29
I attest to the accuracy and
integrity of this document
