J & K High Court: Order Cannot Sustain in the Eyes of Law Under Section 2.1.2(B)

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The present petition was filed against Order No. SMC/ENF/1642-52 dated 23.03.2021 issued by the Commissioner, Srinagar Municipal Corporation (Respondent No.1) with the plot of the Petitioners.

Facts

The premises/ plot of the Petitioners situated at Sanag Nagar, Bypass, Opposite Star Hospital, Srinagar, was sealed and put under the superdari of the Station House Officer (SHO), Police Station, Sadder and Ward Officer, Ward No. 32, Srinagar Municipal Corporation. 

On 18.05.2021 the Hon’ble Court after hearing the counsel for the parties observed that the power exercised by Respondent No.1 in issuing the Order impugned, prima facie, was not available with the said authority. In the present situation, the court sought instructions from the Respondents in the matter through Mr. Moomin Khan, learned Standing Counsel representing the Respondent-Corporation, and posted the matter on 20.05.2021.

Petitioner’s Contention

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The learned counsel appearing for the petitioners submitted that the provision of law under which the impugned order was passed, i.e., Section 2.1.2. (b) of the Srinagar Municipal Corporation (Building) Bye-Laws 2011. It did not apply to the facts and circumstances of the case on hand as much as the said provision deals with the sealing of unauthorized buildings, while the subject matter of challenge had reference to a plot used for trade purposes.

Respondent’s Contention

The learned Counsel appearing for the respondents had submitted the objections on behalf of the respondents which were directed to be taken on record. The copy of the objections so submitted stands already provided to the learned Senior Counsel representing the Petitioners in advance.

He further submitted that while reiterating the averments made in the objections, the petition was not maintainable on the ground that the Petitioners had the remedy of filing Revision Petition qua the Order impugned available before the Jammu and Kashmir Special Tribunal.

Court’s Observation

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The Court observed that the grounds urged by the respondents in their Objections about the use of premises in question being without a license did not form the basis of the issuance of the impugned Order by Respondent No.1. The basis of the impugned Order had reference to Section 2.1.2. (b) which was 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.

Court’s Judgment

The instant Writ Petition was allowed and the impugned Order bearing No. SMC/ENF/1642-52 dated 23.04.2021. The Respondents were directed to forthwith de-seal the premises of the Petitioners.

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