Govt breached theory of power separation by enacting legislation against sealing: DB

Mohinder Verma
JAMMU, Apr 1: Division Bench of State High Court comprising Chief Justice M M Kumar and Justice Muzaffar Hussain Attar today said that Government has breached the theory of separation of powers by enacting Jammu and Kashmir Civic Laws (Special Provisions) Act, 2014 whereby moratorium has been imposed on the sealing/demolition of illegally constructed commercial/ residential structures to ‘override’ the Court directions.
The Division Bench hinted that the Constitutional validity of the Act would come under challenge for which the counsels for the petitioners have even requested for some time and said that important question whether such a legislation has been enacted with the sole object of taking away the base of a judgment and order of the court will be decided during the course of arguments on the Constitutional legitimacy of this piece of legislation.
The Division Bench, however, issued explicit directions to the Chief Secretary and Deputy Commissioners of Reasi, Jammu and Srinagar to ensure that no illegal construction is permitted after March 5, 2014, which may be in violation of the provisions of Master Plan, without permission from local body or at public lane/road.
In a detailed order after more than one hour long hearing on a Public Interest Litigation (PIL) titled A Citizen versus State of J&K and clubbed Civil Miscellaneous Applications, the DB observed, “the High Court has been entertaining various Public Interest Litigations highlighting the rampage violations of Master Plan by constructing buildings in the non-conforming areas, raising of constructions on public lanes, agricultural land without seeking permission to change the land use, raising of constructions without obtaining any sanction from the local authorities and blocking the public roads/by-lanes etc”.
“On numerous occasions in both the wings of this Court at Srinagar and Jammu, various directions have been issued for sealing or demolishing all such buildings because such violations bring in the regime of lawlessness, defeat the planning, create extreme inconvenience to the pedestrian and in-fact the law of Jungle prevails”, the DB further said.
However, the DB noted with serious concern that the legislature in its wisdom has enacted Jammu and Kashmir Civic Laws (Special Provisions) Act, which has put a moratorium on sealing of buildings, which have violated the Master Plan till March 31, 2015.
During the course of arguments, R K Gupta (Amicus) and Ajay Sharma, counsel for the petitioner, pointed out that the directions issued by High Court on December 31, 2013 would remain un-effected by the provisions of Section 5 of the Act.
“The buildings or structures, which are incomplete on the date of commencement of the Act or which were currently under construction or the buildings/structures erected on public land, road or any other public utility have been excluded from the operation of the Act”, they submitted, adding “buildings or structures not complying with the directions with regard to safety standards, issued by the Government from time to time would also not be covered by the operation of the Act”.
On this, the DB said, “the question whether such a legislation has been enacted with the object of taking away the base of a judgment and order of the court is yet to be decided as counsels for the petitioners have requested for some time to challenge the constitutional validity of the Act”, adding “they have argued that such a piece of legislation has never been enacted and it patently goes against the fundamental law of the land that legislature cannot act as an appellate forum to stay the directions of this Court”.
“The theory of separation of powers distributing legislative and judicial power has been completely breached by enacting such a piece of legislation. We leave all such issues to be considered when the constitutional validity of the Act is challenged”, the DB noted with concern.
Stating that there was no impediment left in the enforcement and implementation of the directions for sealing/demolition of various categories of buildings especially after rejection of pleas by the Apex Court of India, the DB said, “on one pretext or the other the respondents have been dragging their feet and are not implementing the directions which called for their explanation under contempt jurisdiction”.
At this stage, Advocate Ajay Sharma pointed out various things from the status report dated September 18, 2013 filed by the Divisional Commissioner along with the status report about the unauthorized buildings/structures, which were coming up in violation of building permissions, furnished by the Deputy Commissioner, Reasi on September 16, 2013.
“A list of 27 structures has been given and it shows that in most of the cases the construction work was stopped as it was without permission. The nature of the buildings has also been disclosed as commercial/residential etc. Therefore, it will be covered by the exception created by Section 5 of the Act because they are incomplete and action in accordance with the directions issued in order dated December 31, 2013 has to continue”, DB said.
“Our attention has also been drawn to the report submitted by the Chief Executive Officer, Katra Development Authority listing 17 buildings where construction work was under progress but it was stopped for being without permission or against the Master Plan/ any other rules/regulations”, the DB said, adding “in respect of all these 17 buildings also the directions issued on December 31, 2013 would continue to apply and the action is required to be taken by the Chief Executive Officer, Katra Development Authority and Deputy Commissioner, Reasi”.
The DB further said, “likewise, our attention has been drawn to the status report filed on behalf of Deputy Commissioner, Reasi on March 24, 2014 mentioning that mandatory notices to 70 persons have been issued to ascertain violation of Section 13 of the Agrarian Reforms Act”, adding “in this context the sealing process was to be initiated on receipt of the report of violation concerning Section 13 of the Agrarian Reforms Act. However, no status has been filed till date because this category of buildings would also be outside the purview of Section 5 of the Act”.
The Deputy Commissioner, Reasi had issued an order dated May 29, 2013 banning all such constructions where permission under Section 13 of the Agrarian Reforms Act has not been obtained. Moreover, he had also banned all constructions coming up in violation of Master Plan/Municipal Laws. “If such ban was already imposed then any construction which has come up thereafter, although may be before March 5, 2014 would also not be covered by the provisions of Section 5 of the Act”, the DB added.
On this, Advocate Parag Sharma appearing for the petitioner raised the issue that some people have blocked the by-lanes/public roads by raising construction. “This category of cases has also been excluded from the operation of the Act as is evident from the perusal of Section 5”, he added.
While referring to the report submitted by DFO (Demarcation) showing encroachment on forest land along the road from Domail to Katra, the DB observed, “the fresh document indicates that no action has been taken against the encroachers like Government Middle School Moori, Tara Chand, son of Amar Nath and Joginder, son of Tej Ram”.
“Why these persons/institutions have been left out has to be explained by the Deputy Commissioner Reasi”, the DB said, adding “let status report with regard to the persons, who have already been issued notices or eviction orders or whose joint re-verification was required to be done be filed along with the status report with regard to five persons, who have been named by the DFO as encroachers in the latest report”. The DB directed that the needful shall be done within a period of two weeks.
Observing that provisions of the J&K Civic Laws (Special Provisions) Act in unmistakable terms clarify that the action which is prohibited by the provisions of Section 4(1) of the Act would not apply to such buildings or structures which have been constructed after coming into force of the Act—March 5, 2014, the DB said, “it also does not apply to structures which do not conform to the safety standards as laid down by the Government from time to time”.
Accordingly, the DB directed Chief Secretary, Deputy Commissioners of Reasi, Jammu and Srinagar to ensure that no illegal construction is permitted to be raised after March 5, 2014 which may be in violation of the provisions of Master Plan, without permission from local body or at public lane/roads.
The DB further directed that no such building should be constructed which fail to conform the safety standards as laid down by the Government from time to time. “The compliance report in that regard be also filed by the adjourned date. The record concerning the Act along with the reasons, objects and other record shall be produced before this Court on the next date of hearing”, the DB said.
The DB, at the same time, clarified that this Court being custodia legis, no other Court, Tribunal or any other Forum would be competent to entertain any appeal/application/suit etc and the same may be placed before this Court.

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