Quashed

Asha Seth v. Jammu Municipal Corporation Jmc Jammu Th Its Secretary and Others

J&K HC1 Feb 2022WP(C)/138/2022

Case brief

AI extract

What is this about?

High Court of Jammu & Kashmir quashed an order dated 07.12.2021 sealing the petitioner's premises. The order was invalid as it was passed by the Secretary before a delegation of powers in his favor was notified in the Official Gazette on 16.12.2021, making it without jurisdiction.

What did the court decide?

impugned order dated 07.12.2021 is quashed with direction to competent authority to pass a fresh order if necessary.

Asha Seth Vs Jammu Municipal Corporation Jmc Jammu Th… — Writ and Judicial Review | J&K HC (2022)

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Sr. No. 10

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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(Through Virtual Mode)

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CJ Court

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Case: WP(C) No. 138 of 2022

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Asha Seth

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.....Appellant/Petitioner(s)

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Through :- Sh. Ayushman Kotwal, Advocate.

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v/s

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Jammu Municipal Corporation, JMC, Jammu.

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.....Respondent(s)

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Through :- Sh. Rajnish Raina, Advocate.

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CORAM:

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HON’BLE THE CHIEF JUSTICE HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

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ORDER

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Heard Sh. Ayushman Kotwal, learned counsel for the petitioner and Sh. Rajnish Raina, learned counsel for the Jammu Municipal Corporation.

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The petitioner by means of this writ petition has assailed order dated 07.12.2021 passed by the Secretary, Municipal Corporation, Jammu, directing for sealing of the premises of the petitioner in exercise of powers under Section 8 (1) of the Building Operations Controlling Authority Act (for short ‘ the Act ’).

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The only submission of learned counsel for the petitioner is that the Secretary, Municipal Corporation, has no authority of law to pass any order of sealing under Section 8 (1) of the Act. The order has to be passed by the Authority itself.

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In response to the above argument, Sh. Raina learned counsel for the respondent, placing reliance upon Section 16 of the Act submits that the Authority has the power to delegate the same and, in exercise of such delegation, the Chairman, Jammu Municipal Corporation delegated the power

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2 WP(C) No. 138 of 2022

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to pass order under Sections 6, 7(3) and 8 of the Act to the Secretary, Jammu Municipal Corporation.

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Be as it may be, the said delegation of power has been notified in the Official Gazette dated 16.12.2021 meaning thereby that the said delegation has come into force from the aforesaid date, i.e., the date of its notification and it cannot be applied retrospectively.

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The order impugned is dated 07.12.2021. On the said date there was no delegation of power by the authority in favour of the Secretary, Jammu Municipal Corporation and, as such, the order impugned appears to be patently without jurisdiction.

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In the aforesaid facts and circumstances, the impugned order dated

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07.12.2021 is quashed with a direction to the competent authority to pass a fresh order, if necessary.

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The writ petition is disposed of.

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(SINDHU SHARMA) (PANKAJ MITHAL) JUDGE CHIEF JUSTICE

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JAMMU 01.02.2022 Abinash

Asha Seth v. Jammu Municipal Corporation Jmc Jammu Th Its Secretary and Others

Case brief

What is this about?

What did the court decide?

Asha Seth v. Jammu Municipal Corporation Jmc Jammu Th Its Secretary and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

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