C.M.SHARMA Vs. STATE OF J&K

JUDGEMENT

(1.) THE constitutional validity of the Jammu and Kashmir Residential and Commercial Tenancy Act, 2012 is under challenged in the present proceedings. The earlier impugned act has repealed the J&K Houses and Shops Rent Control Act, 1966. The mechanism under 1966 Act was entirely different than the one postulated by the impugned legislation. Earlier it was considered a part of judicial functions. The power of the Rent Controllers and the Appellate Rent Tribunal were conferred on the Sub Judges/CJMs who were designated as Rent Controller. The Appellate Jurisdiction were given to Principal District Judges. The aforesaid mechanism is sought to be replaced by the new Act giving authority to vest those powers with the Assistant Commissioner (Revenue) for areas falling within the limits of Municipal Corporations and other officers. The petitioner has argued that it is a retrogative step. In view of the provisions of Article 50, the separation of executive and judiciary has been contemplated and even an Act to that effect has been enacted known as the Jammu and Kashmir Separation of Judicial and Executive Functions Act, 1966. Section 18 of the Jammu and Kashmir Constitution which is wider than Article 50 of the Constitution of India, even further elaborates that the State is to secure a judicial system which is humane, cheap, objective and impartial whereby justice shall be done and it shall also be seen to be done. The matter requires consideration at length particularly in the light of the judgment of Hon'ble the Supreme Court in Namit Sharma v. Union of India (2012) AIR SCW 5523. Accordingly, a Division Bench of this Court vide order dated 12.09.2012 has stayed the operation of the provisions of the Act and the matter is pending consideration. The State has not sought modification of that order dated 12.09.2012. Keeping in view the significance and constitutional issue raised, we are of the view that the matter requires consideration at length and cannot be decided at the motion stage. Accordingly, all the petitions are admitted which may be listed for hearing on 04.03.2012. Meanwhile, the mechanism which was postulated under the old Act shall continue. The interim order is modified to the extent that suits and appeals which were pending or which have been withdrawn by virtue of the provisions of Section 42 (4) of 2012 Act shall continue to be adjudicated by the Rent Controller or Appellate Rent Tribunal who had been earlier clothed with the power. The withdrawal of earlier suits or appeals would be deemed to be restored on the board of the Court of competent jurisdiction on filing of appropriate application by the party concerned.

(2.) THE application stands disposed of.