Constitutional validity of law restricting sealing, demolition of illegal structures challenged

*HC can conduct judicial review of any legislation
Mohinder Verma
JAMMU, Apr 18: In a major development in the ongoing disagreement between judiciary and Government, the Constitutional validity of Jammu and Kashmir Civic Laws (Special Provisions) Act has been challenged in the State High Court with the petitioner claiming that the Act is ultra-vires of the Constitution and violative of various Articles of the Constitution of India.
By quoting several judgments of the Supreme Court and rulings rendered by seven Judges Constitution Bench of Apex Court of the country, the petitioner has submitted that High Court can conduct judicial review of this legislation, whose sole objective was only to restrict sealing and demolition of unauthorized structures.
The writ petition challenging the Constitutional validity of J&K Civic Laws (Special Provisions) Act has been filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir for issuance of appropriate orders and directions.
The petitioner is an intervener in the pending Public Interest Litigation (PIL) titled “A Citizen Vs State of J&K and Others” in which the High Court issued directions for sealing of illegal structures on December 31, 2013. Now, the PIL along with the writ petition challenging Constitutional validity of the J&K Civic Laws (Special Provisions) Act will come up for hearing before the High Court on April 21, 2014.
In the petition, Advocate Parag Sharma, counsel for the petitioner, has submitted, “the Act, which came into force on March 5, 2014, is a unique piece of legislation, which doesn’t spell out its aims and objects for enactment”, adding “the only presumption, which can be drawn is that the Act has been enacted with malafide motives to protect the violators of law and not for the welfare of the general public”.
“This Act has to be judged for its validity on the basis of the stated principles of law and viewed so, the Act on its face is ultra-vires of the Constitution and is a void piece of legislation”, the petition said, adding “by putting restrictions on sealing or demolition of unauthorized structures, Section 4 of the Act has rendered all the laws, rules, regulations, bye laws or order or any judgment, decree or order of any court or Tribunal as redundant and ineffective”.
Not only that, Sections 3 and 4 of the Act have even impliedly taken away the jurisdiction of the High Court of judicial review of the matters, which are pending before it for inquiry or adjudication, the petition said, adding the propounded Act runs contrary to the basic structure of the Constitution of India and as such is ultra-vires.
Stating that the Act is of vague nature and only protects all types of violations, the petition said, “the right of citizens to move with freedom in those areas where huge violations have been made, is infringed. Similarly, the right of livelihood of the victims of the violations is curbed and they cannot live a life with dignity”, adding “these are the acts, which are violative of Articles 19 and 21 of the Constitution. Moreover, the Act also violates the mandates of Shri Mata Vaishnodevi Shrine Act, which envisages facilities of various categories to be provided to the pilgrims, as such their fundamental rights under Articles 19, 21 and 25 have also been infringed”.
Further challenging the Act, the petition said, “this piece of legislation protects the structures raised without obtaining any permission from the designated authorities as such it is aimed at to encourage the crimes instead of preventing their commissions. The violators and those who allowed the violations are being protected by such a piece of legislation. The Legislative and Executive Wings of the State have encouraged the crimes despite the enforcement of J&K Development Act of 1970, the Municipal Act of 2000 and the J&K Municipal Corporation Act”, adding “such an Act with ulterior and bad motives cannot exist in the Statute Book and is liable to be struck down as null and void”.
Stating that Act has taken away the Constitutional jurisdiction of the Court and dried the stream of administering justice en-route the proceedings pending before it, which Constitution doesn’t permit, Advocate Parag said that Act suffers from patent malafides and illegalities which cannot withstand the judicial scrutiny. “The Act has shaken the basic structure of the Indian Constitution as well as State Constitution”, he added.
About the judicial review of the Act, the petition, while drawing the attention towards the ruling rendered by seven Judges Constitution Bench of Supreme Court, said, “this Bench has held that the judicial review comprises three aspects—judicial review of legislative action, judicial review of judicial decisions and judicial review of administrative act”, adding “the Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it”.
“Only Judges have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive don’t, in the discharge of their functions, transgress Constitutional limitations”, the petition said, adding “the Constitution of India while conferring power of review of legislative action upon the higher judiciary, incorporated important safeguards. Even the Supreme Court has always considered the power of judicial review vested in the High Courts and in the Supreme Court under Articles 226 and 32 respectively, enabling legislative action to be subjected to the scrutiny of superior courts, to the integral to our Constitutional scheme”.
While quoting the rulings of Supreme Court in cases titled Indra Sawhney Versus Union of India and Others and Kesa-Vananda Bharati Versus State of Kerala, the petition said, “the power of High Courts and the Supreme Court to test the Constitutional validity of legislations can never be ousted or excluded as this is a basic structure of the Constitution”, adding “neither the Parliament nor any State Legislature can take away the judicial review power of the Supreme Court or that of High Courts as per the ratio of the decisions given by the Supreme Court”.
The petitioner has also drawn the attention towards another Supreme Court ruling, which states: “Legislatures under the Constitution, have, within the prescribed limits power to make laws prospectively as well as retrospectively. By exercise of those powers, a legislature can remove the basis of a decision rendered by a competent court thereby rendering the decision ineffective. But no legislature in the country has power to ask the instrumentalities of the State to disobey or disregard the decisions given by the Courts”, adding “the legislature can change the basis on which a decision is given by the court and thus can change the law in general, which will affect a class of persons or events at large. However, it cannot set aside an individual decision inter parties and affect their rights and liabilities alone. Such an act on the part of legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or Tribunal”.

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