HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU (THROUGH VIRTUAL MODE)

Reserved on 01.05.2025 Pronounced on 06.06.2025 CJ Court PIL No. 27/2017 Court of its own motion …Petitioner(s)/Appellant(s)

Through: Mr. Ajay Sharma, Adv. (Amicus Curiae)

v/s State of J&K and others …. Respondent(s)

Through: Mr. S. S. Nanda, Sr. AAG Mr. Sunil Sethi, Sr. Adv. with Mr. Parimoksh Seth, Adv. Mr. A. K. Sawhney, Adv.

Mr. Harshwardhan Gupta, Adv.

Mr. Sachin Dogra, Adv.

Mr. Atul Verma, Adv.

CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE.

JUDGMENT

Per Oswal-J

1. Initially, this petition in public interest was filed by Sh. Jagdish Raj (now deceased) in respect of the illegal encroachment made by the shopkeepers and other unknown persons in JDA Shopping Complex, near City Chowk, Jammu and after his demise, this petition is being continued by this Court on its own motion. The petition primarily focused on two issues:

A. Number of Rehries are operating illegally in the different parts of the Jammu City including the area of City Chowk Jammu, to Central Basic High School, Purani Mandi, Jammu, leading to obstruction of free movement of pedestrians and impeding the smooth flow of traffic.

B. That there have been large scale encroachments on the roads/streets/pathways by several persons including shopkeepers which also impede and obstruct free flow of pedestrians and vehicles.

2. This Court vide order 28.03.2018, had issued the following directions:

“……..5. While we appreciate the action initiated by the JMC for removing the illegal encroachments by the shop owners as also the street vendors, yet we feel that much more is required to be done. As earlier directed, efforts should be taken by the JMC to relocate street vendors in notified vending zones and illegal vending on public roads, streets and pathways etc. shall not be permitted.

6. Regarding errant shopkeepers, who despite being challaned and fined, repeat their action over and over again and display their merchandise by extending their shops on the public roads/streets/pathways, the JMC, in addition to invoking penal provisions, shall also proceed against the encroachers in terms of Section 232 of the Municipal Corporation Act.

7. However, in case of repeated violations, the JMC shall proceed against such defaulters/encroachers in terms of Section 371 of the Municipal Corporation Act.

8. Section 371 reads as under:

“371. Power in case of non compliance with notice, etc.–– In the event of a non-compliance with the terms of any notice, order or requisition issued to any person under this Act or any rule, regulation or bye-laws made there-under, requiring such person to execute any work or to do any act, it shall be lawful for the authority or officer at whose instance the notice, order or requisition has been issued, whether or not the person in default is liable to punishment for such default or has been prosecuted or sentenced any punishment therefor, after giving notice in writing to such person, to take such action or such steps as may be necessary for the completion of the act or the work required to be done or executed by such person and all the expenses incurred on such account shall be payable to the Commissioner on demand and if not paid within ten days after such demand, shall be recoverable as an arrear of tax under this Act.”

9. As is apparent from perusal of the Section reproduced above, the Jammu Municipal Corporation is empowered to take such steps or action as may be required to enforce the compliance of its orders/notices. Inherent in such power is the power to seal the premises so as to deter the defaulters from repeating violations.

10. In these circumstances, it is directed that in case a shop owner or owners are found to be repeating the violation despite notice to refrain the Jammu Municipal Corporation shall immediately and forthwith seal the shop after giving him a notice specifying a time limit of 10 days from date of receipt of correct its violations.

11. Further orde