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Judgment
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.
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.
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.
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.
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.
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.
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.
Writ Petition disposed of on the above terms. Pending applications, if any, shall also stand disposed of accordingly.