Research › Search › Judgment

J&K High Court · body

2021 DIGILAW 691 (JK)

Zaitoon v. Commissioner, SMC

2021-12-29

SANJEEV KUMAR

body2021
ORDER : 1. The petitioner is aggrieved and has challenged order dated 17-11-2021, passed by J&K Special Tribunal, Srinagar [“Tribunal’], in a revision petition titled Zaitoon versus Commissioner, Srinagar Municipal Corporation (SMC) & others. 2. Briefly stated, the facts leading to the institution of this petition, filed under article 226 of the Constitution of India, are that pursuant to a complaint lodged by the inhabitants of Gogji Bagh, Srinagar, through respondent No.4, the Commissioner, SMC, vide his order dated 28-09-2021, sealed the premises of one Ashiq Hussain Masoodi, who was found running a crèche in the name of Oasis Child Development Centre in a residential area without permission. This order was assailed by the petitioner before the Tribunal in a revision petition. The revision petition was dismissed by the Tribunal vide order impugned on the ground that the petitioner had no locus standi to challenge the order of sealing, which was directed against one Ashiq Hussain Masoodi and not against her. It is against this order of the Tribunal that the petitioner has come up before this Court in these proceedings. 3. The impugned order is questioned primarily on the ground that the Tribunal has committed material irregularity in non-suiting the petitioner on the point of locus, whereas fact of the matter is that the petitioner, in her capacity as Chairman of the above named crèche, is running it after having obtained proper registration in her name from the competent authority. It is also contended that prior to the issuance of order of sealing of the premises, no Show Cause Notice was ever served on the petitioner and, therefore, the impugned sealing order was bad in the eyes of law. The Tribunal, however, failed to appreciate this aspect of the matter. 4. That during the pendency of this petition, Mr. Moomin Khan, learned counsel, appearing for the SMC, has come up with the order, issued on 22-12-2021 by the Commissioner, SMC, which, on his request, is taken on record. The Tribunal, however, failed to appreciate this aspect of the matter. 4. That during the pendency of this petition, Mr. Moomin Khan, learned counsel, appearing for the SMC, has come up with the order, issued on 22-12-2021 by the Commissioner, SMC, which, on his request, is taken on record. From a plain reading of the said order, it clearly transpires that the structure of one Ashiq Hussain Masoodi, which was sealed on 28-09-2021, has been de-sealed temporarily for a period of 02 months with a view to facilitate the owner of the structure to apply for regularization/permission/usage change under relevant provisions of law and that the owner shall make arrangements for shifting of the students etc., in case such application for permission is rejected. The order further provides that de-sealing of the building on temporary basis shall not confer any right on the owner to run or to continue functioning of the crèche and in case applicant fails to get the requisite permission, the crèche/building shall be re-sealed at the end of 02 months. 5. The petitioner feels satisfied with the order of de-sealing passed by the SMC and, therefore, prays for disposal of this petition as per the terms and conditions contained in the said order. 6. Heard learned counsel for the parties and perused the record. 7. Admittedly, the sealing order dated 28-09-2021 was passed by the Commissioner, SMC against one Ashiq Hussain Masoodi for change of permitted user of his building. This order of sealing was passed on the basis of a complaint lodged by respondent No.4 and other inhabitants of Gogji Bagh, Srinagar against the running of crèche in the residential area without permission. It has come on record that the petitioner is none other than the wife of Ashiq Hussain Masoodi and is running the crèche under the name of Oasis Child Development Centre after having permission for the same from the Municipal authorities. The issue which is debated by learned counsel for the parties before me is as to whether the person, other than the one to whom the Show Cause Notice has been issued and against whom the sealing order has been passed, is competent in law to challenge it (sealing order) on the ground that it adversely affects him or her. The issue which is debated by learned counsel for the parties before me is as to whether the person, other than the one to whom the Show Cause Notice has been issued and against whom the sealing order has been passed, is competent in law to challenge it (sealing order) on the ground that it adversely affects him or her. I could have gone into this question raised by learned counsel for the parties but having regard to the subsequent development i.e. de-sealing of the sealed structure by the Commissioner, SMC, on its own, for a period of 02 months, so as to facilitate the owner of the structure/crèche to apply for proper permission/usage change under the relevant provisions of law, I refrain from doing so. The controversy raised in this petition has virtually come to an end and the writ petition is rendered infructuous. With the passing of de-sealing order by the Commissioner, SMC, the sealing order, which was subject matter of challenge in the revision petition before the Tribunal, has ceased to exist. The order passed by the Tribunal, under the circumstances, too is rendered ineffective. 8. Having regard to the totality of the circumstances and the developments that have taken place during the pendency of the matter, this petition is disposed of by holding that with the passing of de-sealing order dated 22-12-2021 by the Commissioner, SMC, the order of sealing, impugned in the revision petition before the Tribunal and the order passed by the Tribunal, impugned in this petition, have both effaced and consequently rendered ineffective. Resultantly, the petition on hand is also rendered infructuous. The structure, where the crèche, under the name of Oasis Child Development Centre, is being run, claimably by the petitioner, has been de-sealed for a period of 2 months, facilitating the owner of the structure/building to apply for permission/usage change under the provisions of relevant by-laws. The de-sealing order is made to remain in force for a period of 2 months during which the owner has been obliged to seek requisite permission. This takes care of the grievances of the petitioner raised by her before the Tribunal as well as before this Court. With the issuance of order dated 22-12-2021 by the Commissioner, SMC supra, there remains nothing in this petition to be adjudicated upon. It is, accordingly, disposed of along with connected CMs.