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2014 Supreme(J&K) 48
JAMMU AND KASHMIR HIGH COURT
M.M. KUMAR & MUZAFFAR HUSSAIN ATTAR, JJ.
A Citizen – Appellant
Vs.
State of Jammu & Kashmir and Others – Respondents
W.P.P.I.L. No. 29 of 2013
Decided On : 1.4.2014
The central legal point established in the judgment is the interpretation and application of the Jammu and Kashmir Civic Laws (Special Provisions) Act, 2014, particularly Section 5, and its impact on the court's directions for sealing and demolishing buildings.
Headnote:
Master Plan - Jammu and Kashmir Civic Laws (Special Provisions) Act, 2014 - Section 5 - Summary: The court discussed the violations of the Master Plan and the enactment of the Jammu and Kashmir Civic Laws (Special Provisions) Act, 2014, which imposed a moratorium period on sealing of buildings that violated the Master Plan. The court considered the exclusion of certain buildings from the Act's operation and the constitutional validity of the Act. The Act's provisions and their impact on the court's directions were highlighted, emphasizing the limitations and exceptions under Section 5.
Fact of the Case:
The court addressed the rampant violations of the Master Plan and the enactment of the Jammu and Kashmir Civic Laws (Special Provisions) Act, 2014, which imposed a moratorium period on sealing of buildings that violated the Master Plan. The court discussed the directions issued for sealing or demolishing buildings and the challenges to these orders before the Supreme Court.
Finding of the Court:
The court found that the Act imposed a moratorium period on sealing of certain buildings that violated the Master Plan, but also considered the exclusion of specific buildings from the Act's operation. The court also addressed the challenges to its directions and the factual errors raised before the Supreme Court.
Issues: The issues involved the enforcement of the court's directions for sealing or demolishing buildings, the constitutional validity of the Act, and the exclusion of certain buildings from the Act's operation.
Ratio Decidendi: The court's decision was influenced by the provisions of the Jammu and Kashmir Civic Laws (Special Provisions) Act, 2014, particularly Section 5, which excluded certain buildings from the Act's operation. The court also considered the challenges raised before the Supreme Court and the factual errors in the orders.
Final Decision: The court dismissed the review applications and emphasized the enforcement and implementation of its directions for sealing and demolishing buildings listed in the order. The court also highlighted the exclusion of specific buildings from the Act's operation and the need for compliance with the Act's provisions.
M.M. KUMAR, J.
1. This 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 road/by-lanes etc.
2. On numerous occasions in both Wings of this Court at Srinagar as well as at 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. However, the legislature in its wisdom has enacted an Act known as Jammu and Kashmir Civic Laws (Special Provisions) Act, 2014, (for brevity, 'the Act') which has put a moratorium period on sealing of some of such buildings, which have violated the Master Plan etc. postulating that the moratorium shall remain in force from the date of publication of the Act in the official gazette till 31.03.2015. It is appropriate to mention that the Act has been notified in the official gazette on 05.03.2014 and it has taken effect from that date and it has not given retrospective effect.
3. Mr. R.K. Gupta, learned Amicus and Mr. Ajay Sharma, learned counsel for the petitioner have pointed that the directions issued by this Court on 31.12.2013 would remain un-effected by the provisions of Section 5 of the Act inasmuch as the buildings or structures which are incomplete on the date of commencement of the Act or which were currently under construction or buildings or structures erected on public land, public road or any other public utility have been excluded from the operation of the Act. 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. 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 learned counsel for the petitioners have requested for some time to challenge the constitutional validity of the Act. Learned counsel 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. However, at this stage the submission has also been made that buildings and structures which do not fall within the preview of Section 5 of the Act would continue to be governed by the orders passed by this Court from time to time. In that regard our attention has been drawn to the directions issued by this Court on 31.12.2013, which are as under :-
"2. We have heard learned counsel for the parties at length and find that the illegal constructions in brazen disregard of Municipal and Urban Laws have taken place without any check by the authorities. After hearing the learned counsel and perusing the files we feel that illegal constructions could be classified in the following categories:
(a) Commercial/residential or other buildings which have come up completely without permission of the local bodies like Municipal Committee or Development Authority.
(b) Illegal constructions which have come up and in violation of Master Plan.
(c) Illegal constructions which have been raised on agricultural land without seeking permission to convert change of use of the same for commercial/residential or other purpose.
(d) The structures which have come up where permissions for construction ha
