HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

Reserved on: 18.02.2021

Pronounced on: 10.03.2021

OWP No. 1722/2018

IA No. 01/2018

Ghulam Qadir Wani and another

...Petitioners(s)

Through :- Mr. Hamza Prince, Advocate

V/s

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J&K Special Tribunal and others

.....Respondent (s)

Through :- Mr. Showkat Ali Khan, Advocate

Mr. Moomin Khan, Advocate

Coram:

HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

JUDGMENT

<<,

1.

The present petition has been filed by the petitioners for

quashing order dated 06.08.2018 passed by the Jammu and Kashmir Special

Tribunal, Srinagar by virtue of which the order/notice bearing no.

SMC/Enf/2642-46 dated 20.03.2017, issued by Chief Enforcement Officer,

Srinagar Municipal Corporation, (for short <SMC Srinagar=) was set aside.

Simultaneously, in the present petition, the petitioners have also challenged

the dismissal of their application for arraying them as party respondents in

the appeal filed by the respondent No. 5.

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2.

The brief facts are that the petitioners are the owners of the

building named and styled as <Wani Complex= situated at Batmaloo,

Srinagar and in the said building a shop situated at ground floor was rented

out to respondent No. 5 decades ago. It is stated that the respondent No. 5

installed a huge advertisement/sign board on the above mentioned shop

without permission from the SMC, Srinagar and accordingly, petitioners

filed a complaint before SMC, Srinagar that led to the issuance of

notice/order directing respondent no.5 to dismantle the hoarding

advertisement within seven days and it was further stated that failure to do

so, would result in action by the SMC, Srinagar. The said notice/order was

issued on 20.03.2017 and the same was impugned by the respondent No. 5

before J&K Special Tribunal, Srinagar by way of appeal. It is further stated

that as soon as the petitioners came to know about the filing of an appeal by

the respondent No.5, they filed an application for impleading them as party

respondents but by virtue of the impugned judgment dated 06.08.2018 not

only order impugned in the appeal was set aside but also the application for

impleadment of the petitioners was dismissed.

3.

The petitioners have challenged the judgment impugned inter-

alia on the following grounds:-

A.

That Section 116 of Municipal Corporation Act, 2000 prohibits

erection/exhibition of any advertisement over any land building

wall etc., without the written permission of the Commissioner

SMC. As no permission was sought by the respondent No. 5

before erecting any advertisement board, the SMC Srinagar,

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had no option but to direct the respondent No. 5 to take down or

remove said advertisement as per the mandate of Section 119 of

the Act (Supra), and it also vested Commissioner with the

powers to enter the premises and have the advertisement

dismantled or removed, therefore, the notice was validly issued

by the respondent Nos. 1 to 4 and the Tribunal has set-aside the

notice/order on the grounds those are foreign to the

requirements of Section 116 of the Act (Supra).

B.

That the Tribunal wrongly entertained the appeal as there was

no provision for filing of an appeal against the notice/order of

SMC Srinagar, issued under section 116 as well as 119 of the

Act (Supra) as such, the Tribunal has wrongly entertained the

appeal.

C.

That the notice was issued by the respondent Nos. 1 to 4 on the

basis of a complaint filed by the petitioners, as such, they were

necessary party to the appeal.

4.

Mr. Hamza Prince, learned counsel appearing for the petitioners

has vehemently argued that the judgment impugned passed by the J&K

Special Tribunal, Srinagar is contrary to the provision of Section 116 as well

as 119 of the Act and the Tribunal has set-aside the order/judgment

impugned on the grounds those are n