MOHAMMAD AMIN BHAT Vs. STATE OF J&K

JUDGEMENT

(1.) The petitioner is claimably running a Guest House under the name 'Al-Hamra Guest House" at Shalimar Srinagar. The building, which housed the aforesaid Guest House, was constructed as a two storied residential building in terms of building sanction granted by the competent authority vide order No.51 of September, 2003. With a view to expand the Guest House activities and to cater to the needs of the tourists effectively and efficiently, additional space was utilized and fresh construction over an area measuring 4500 sqft was completed in the year 2004. Indisputably, the construction activity was undertaken by the petitioner without proper building permission from the competent authority.

(2.) The case of the petitioner as set up in this petition is that he undertook the construction without seeking proper permission from the competent authority in anticipation of regularization of his structure in accordance with the law. It is submitted that with the promulgation of the Jammu and Kashmir Civic Laws (Special Provisions) Act, 2014 ["Act of 2014"], all demolition proceedings, orders, sealing or penalty remained suspended in respect of buildings which had come into existence upto March, 2014 and by subsequent amendments, the date of existence was extended upto September, 2017. It is pleaded that since, the building in question was immune to any demolition proceedings by operation of the Act of 2014 and, therefore, threatened interference by the respondents was questioned by the petitioner in OWP No.945/2014. While the aforesaid petition was pending adjudication in this Court, the then State Government came up with a policy promulgated vide SRO 391 dtd. 20/9/2017 to regulate unauthorized constructions in certain notified areas. The grievance of the petitioner is that clause 2.2 of the policy arbitrarily excluded the areas coming under the Lakes and Waterways Development authority ["LAWDA"]. It is this Clause of the policy along with Clauses 2.9 and 3 which are challenged by the petitioner in this petition.

(3.) The short argument that was put forth by Mr. Salih Pirzada, learned counsel appearing for the petitioner is that Clause 2.2 of the Policy framed by the Government in terms of Sec. 3 of the Act of 2014 is beyond the competence of the Government. It is argued that in terms of Sec. 3 of the Act of 2014, the Government has been authorized to formulate a policy to deal with or regulate unauthorized construction of buildings or structures in the local areas to which the Act applies and in terms of sub-sec. (3) of Sec. 1, the Act of 2014 has been extended to the local areas of Jammu, Srinagar and Katra notified under the provisions of the Jammu and Kashmir Development Act, 1970 ["Act of 1970"]. Learned counsel submits that the area Shalimar, where the offending structure of the petitioner is located, falls within the notified area of Srinagar Development Authority ["SDA' for short] and, therefore, the Government by issuing the impugned policy could not have validly excluded Shalimar area which incidentally also falls within the notified limits of J&K LAWDA. There is, however, no foundation laid for challenging Clauses 2.9 and 3 of the impugned policy nor any arguments were addressed in respect thereto during the course of hearing of the matter.