Pipleshwer Shiv Mandir Management Committee against Jammu Club

DB sets-aside writ court order, remands back to writ court

17/02/2017

Jammu, Feb 16: In a LPA filed by Pipleshwer Shiv Mandir Management Committee against the judgment of writ court whereby writ court dismissed the petition quash the order of Vice Chairman, Jammu Development Authoritydated 04.12.2004 allotting land measuring 4 kanals 3 marlas and 178 Sq. feet in favour of Jammu Cluband also to quash the communication dated 20.09.2004 issued by the Commissioner/ Secretary to Government Housing & Urban Dev Departmenproposing to allot the said land to Jammu Club.
A Divison Bench of State High Court Comprising Chief Justice N Paul Vasanthakumar and Justice Dhiraj Singh Thakur set-aside the order on limited ground as Division Bench is not expressing our view on the merit of the case and all the issues are left open to e raised and decided by the Writ Court.
While setting aside the order of writ court, Division Bench observed that from the amended writ petition that appellant has raised all the issues raised in this appeal and during the hearing of the writ petition the Single Judge by interim orders directed to explain the certain facts as referred to above. Replies were also filed by the respondents in answer to the said issues raised. In such circumstances the senior counsel for the Jammu Club is not justified in contending that the issues raised in this appeal are beyond the prayer made in the writ petition and it is also an admitted fact that the said issues which were raised during the course of hearing in the years 2012 and 2013 are relevant to be decided in the writ petition with regard to sustainability of the orders impugned in the writ petition as well as the relief sought for by the appellant. On perusal of the order of the Writ Court we are satisfied that the issues which were pleaded in the writ petition as per the amended prayer and those raised during the course of arguments, specifically as per orders dated 04.12.2012 and 13.03.2013 have not been answered.
DB further said that it is well settled proposition of law that while deciding a case by a Court of law all issues raised must be answered unless specifically given up. Hence the senior counsel for the appellant argued that all the issues were argued. It is also well settled proposition of law that Court exercising power under Article 226 of the Constitution of India has to consider the issues raised and incidental issues can also be raised during hearing. Technicalities of procedure are not available in the writ proceedings and applying the said principle to the facts of this case, we are of the view that without going to the merits and the contentions raised by the senior counsels appearing for the appellant and the Jammu Club and the counsels appearing for the official respondents, it is appropriate to set aside the order of the Writ Court and remand the matter, leaving issues open to be raised and argued before the Writ Court for consideration and further observed that “As we are setting aside the order on this limited ground, we are not expressing our view on the merit of the case and all the issues are left open to e raised and decided by the Writ Court”. With these observations Division Bench disposed of LPA and directed that till a fresh decision is taken by the Writ Court, status quo, as on today, shall be maintained. JNF

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