PREM KUMAR SIBAL (LT COL ) Vs. STATE OF J&K
LAWS(J&K)-1986-12-5
HIGH COURT OF JAMMU AND KASHMIR
Decided on December 29,1986

Prem Kumar Sibal (Lt Col ) Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

- (1.) THIS order shall dispose of the above mentioned two writ petitions challenging the joint order of the District Magistrate, Srinagar No, 767 77/DMS dated 6 -8 -1986, whereby the petitioner Lt. Col. Prem Kumar Sibal was ordered to stop entire business operations of the petrol pump for a period of two months with immediate effect and the petitioner Maryam Jan was similarly ordered to stop operation of her commercial establishment (Bakery) for the similar period with immediate effect, under the provisions of section 144 of the Cr. P. C. . The impugned order has been assailed, inter alia, on the following grounds: i) For the impugned order is violative of Article 19 (1) (f) Article 19 (1) (g) and Article 31 of the constitution of India, as the impugned order deprives the petitioner, of the legal and constitutional rights to own, held, possess and dispose of the properties at the establishment and imposes restraint on the petitioners to conduct and carry on the trade and business at the premises of the establishment in an extremely arbitrary, harash and viclent manner. The order is illegal, un -constitutional and void abintio invading and violating fundamental rights guaranteed to the petitioners under the constitution. ii) For the impugned order is wholly malafide in law and facts. Respondent -state inter alia, seems to be prejudiced against the petitioners in consequence where of the petitioners have been made scope goats. Otherwise the long history of the disputed establishment, sites does not substantiate the grounds of the impugned order. The order has been passed overnight just in the responses to some letter of the Deputy Inspector of Police (Traffic), Kashmir, the contents where of are known to the petitioners. The history of several decades relating to the establishment and the sites cannot be changed, with one stroke of open overnight at the sweet will of respondents 1 and 2, declaring the establishment as traffic hazards and susceptible to accident on the basis of apprehensions. iii) For the impugned order is wholly unjustified and un -called for and has been passed with out proper application of mind by respondent No: 2. iv) For Section 144 Cr.P.C. has no application to the case of the petitioners. Assuming, though not admitting that the Section has application to the case still the impugned order suffers from gross irregularity which is patent and is not curable. No notice was issued to petitioners before passing the order so as to provide them an opportunity to the cause against imposition of the ban: v) For the impugned order has been served on wrong persons in as much as the petitioners are not owners of the structures of the establishment. As already stated herein before the owner of the structures is respondent No: 3. whereas the petitioners are carrying on their aforesaid business thereon; vi) For the impugned order is without jurisdiction as no emergency existed while passing the order;
(2.) IN the counters, the respondents challenged the maintainability of the writ petitions on the ground that the petitioners had not exhausted the remedy for filing objections against the order impugned as provided Under Section 144 Cr P.O. It was further contented that the establishments of both the petitioners were traffic hazards as per the report of the Deputy Inspector General of Police (Traffic). It was however, admitted therein that the establishment of the petitioners were properly licensed.
(3.) HEARD Learned counsel for the parties. The record was also perused. Before dealing with the merits of the cases, it would be advantageous to re -produce the order impugned as below: "OFFICE OF THE DISTRICT MAGISTRATE, SRINAGAR" Subject: - Stopping the operation of Commercial establishments namely, Jan bakers and Bharat Petroleum Pump (Filling station) near M.A -M - Bridge, Srinagar. ORDER Whereas it has been reported that the location of Jan Bakers and Bharat Petroleum Pump (filling Station) near M AM. Bridge, Srinagar has accentuated the traffic congestion and caused traffic bottle necks. Whereas it has further been reported that with the increasing intensity of traffic growth in the city of Srinagar the above mentioned two spots have become extremely vulnerable from the view point of ensuring smooth flow of traffic. Whereas it has also been reported that a number of accidents have taken place due to the indiscriminate parking of the vehicles outside the above mentioned commercial establishments and that it has become very difficult to regulate at this congested place because of the very fact of their location. Whereas even with the best deployment of manpower the traffic held -ups at the above mentioned location are quite inevitable thereby resulting not only in traffic hazards but also increased susceptibility to accidents. Whereas continuance of operation of the above mentioned two commercial establishments at the present location is highly hazardous and is creating danger to life and property of the road used; and whereas it is necessary to stop operation of the above mentioned two commercial establishments to avert any mishap and to avoid danger to human life and property of the road users. Now, therefore, in exercise of powers vested in me under section 144 of Cr. P. C. 1989 (1933 A D) I, Qazi Mohd. Amin, District Magistrate Srinagar do hereby order that the above two commercial establishments namely, Jan Bakers and Bharat Petroleum Pump (Filling Station) located near M.A.M. Bridge Srinagar shall stop their operation with immediate effect. This order shall remain in fore for a period of two months. Given under my hand and seal of this court today, the 6th day of August, 1986 Sd/ - (QAZI MOHD AMIN) DISTRICT MAGISTRATE SRTNAGAR No: 767 -77/DMS Dated: 6, 8.1986 ;


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