*State directed to file response in petition challenging Act
Mohinder Verma
JAMMU, Apr 25: The judicial review of Jammu and Kashmir Civic Laws (Special Provisions) Act, which restricts sealing and demolition of illegal structures, has begun with Division Bench of High Court comprising Chief Justice M M Kumar and Justice Muzaffar Hussain Attar issuing notice to the State for filing response to the petition challenging Constitutional validity of this legislation.
The judicial review of the Act assumes importance because due to its enactment, the orders passed by the High Court regarding sealing of illegally constructed commercial and residential structures, have been overruled.
After going through the petition filed by Advocate Parag Sharma, the DB observed, “the main challenge to the Act is based on the argument that it doesn’t take away the base of any judgment, order or direction issued by this court but the legislature is acting as an appellate authority”, adding “in that regard reliance may be placed on the judgments of the Supreme Court rendered in the cases of S R Bhagawat Versus State of Mysore, Indian Aluminum Co Versus State of Kerala, S S Bhola Versus B D Sharma and Goa Glass Fibre Ltd Versus State of Goa”.
“We find that it is well settled that the jurisdiction of the courts, legislature and executives have been delineated by the Constitution”, the DB said, adding “the orders passed by the court cannot be tested by the Legislature by acting as a court of appeal, which remedy is available only before the Apex Court”.
“Such an action, according to the petitioner, is patently against the basic structure of the Constitution and has to be declared ultra vires”, the DB further said, adding “in this regard reliance has been placed on the judgment of a Constitution Bench rendered in a case of Keshvananda Bharti Versus State of Kerala”.
The State is required to file response to the writ petition challenging the Constitutional validity of the Act before May 21, when the Division Bench will hear the writ petition along with all the connected matters.
Official sources said that soon after the opening of Darbar Move at Srinagar, the Advocate General and the Law Department would hold threadbare discussion on the petition challenging the Constitutional validity of the Act and then prepare response of the State.
In the writ petition challenging the Act, it has been mentioned that the Act is violative of Article 14 of the Indian Constitution, which guarantees equality before law. “The doctrine of equality before the law is a necessary corollary to the high concept of the rule of law accepted by the Constitution. It is an accepted principle that a law would be void, if it discriminates or enables an authority to discriminate between persons without just classification”, the petitioner said while mentioning that Act has been made applicable to only two capital cities and only one town–Katra.
Why the Act has not been made applicable throughout the State is a million dollar question? the petition asked, adding “this is unreasonable classification of a fiendish nature in the Act. Those who are similarly circumstanced are entitled to equal treatment and the doctrine of equality before law demands that all litigants including the State as litigant are accorded the same treatment and the law is administered in an even handed manner”.
Quoting various Supreme Court judgment and the Articles of Constitution of India, the petitioner said, “any legislation or executive action violating the basic features or basic structure of the Constitution would be unconstitutional”, adding “the Act if viewed on the basis of stated principles of law, is ultra-vires of the Constitution and is a void piece of legislation”.
On the contrary, sources in the Law Department said that J&K Civic Laws (Special Provisions) Act has been enacted after detailed analysis of numerous judgments of Supreme Court and different High Courts across the country whereby framing of similar nature of law has been upheld.
“The Act doesn’t circumvent the orders of the State High Court but only keeps them in abeyance till a formal policy dealing with the illegal constructions across the State is prepared”, they said, adding “such a step was also initiated in the Union Capital in the year 2006 when court issued orders for demolition of illegal structures”.
The Delhi Laws (Special Provisions) Act, 2006 was also challenged in the court of law on the ground that it was politically motivated but the Government’s stand was finally upheld. “Similar is the case with J&K Civic Laws (Special Provisions) Act and the same is likely to withstand the judicial review”, they said.
According to the sources, this is not for the first time that any Act has come under judicial review in Jammu and Kashmir. “Several laws and their rules have already passed through this exercise particularly the one pertaining to transfer of powers of registration of land from Judicial Officers to the Revenue Officers”, they said while disclosing that this law is presently under stay on the orders of the Special Bench of the State High Court.
Meanwhile, Division Bench has issued directions to the Reasi district administration for compliance to the pending directions, which were issued on April 1, 2014.
As per the information available with EXCELSIOR, the Reasi district administration has issued notices to 71 persons who have allegedly raised structures mostly hotels in violation of Section 13 of the Agrarian Reforms Act.
In respect of the cases involving reported violation of Agrarian Reforms Act, the sealing process will have to be carried out as such cases fall in the exception of the J&K Civic Laws (Special Provisions) Act.
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