Jammu & Kashmir High Court
Amit Dalia vs State Of J&K And Others on 6 March, 2020
Author: Rajesh Bindal
Bench: Rajesh Bindal
HIGH COURT OF JAMMU AND KASHMIR Sr. No. 2
AT JAMMU
PIL No. 1/2014
IA No. 99001/2015 [D-
51/2015]
IA No. 91/2014
IA No. 181/2014
IA No. 148/2014
IA No. 150/2014
IA No. 336/2014
CPPIL No. 9900001/2014
PIL No. 36/2018
IA No. 1/2018
Amit Dalia ..... Appellant/Petitioner(s)
Through :- Nemo for petitioner in PIL No. 1/2014
Mr. Anil Sethi, Advocate in PIL No.
36/2018
Mr. Prag Sharma, Advocate for applicant
V/s
State of J&K and others .....Respondent(s)
Through :- Mr. Rajesh Thapa, Dy AG vice Mr. S. S.
Nanda, Sr. AAG for R 1 & 2.
Ms. Monika Kohli, Advocate for R-5
Mr. Sachin Sharma, Advocate for R-4
HON'BLE THE CHIEF JUSTICE
Coram:
HON'BLE MR. JUSTICE RAJESH BINDAL, JUDGE
ORDER
PIL NO. 1/2014
1. We find that no memo of parties has been brought on record. We, therefore, direct impleadment of the following as party respondents in the writ petition:
(i) Union Territory of Jammu and Kashmir through the Chief Secretary, Civil Secretariat, Jammu/Srinagar. 2 WPPIL No. 01/2014
(ii) Union Territory of Jammu and Kashmir, through its Secretary to Government Housing and Urban Development Department and Local Bodies, Jammu.
(iii) Government of UT of J&K, through its Secretary, Public Health Engineering, Irrigation, Flood Control Department, Jammu.
(iv) Government of UT of J&K, through its Secretary, Power Development Department, Jammu.
(v) Jammu Municipal Corporation, through its Commissioner, Jammu.
(vi) Jammu Development Authority through its Vice Chairman, Jammu.
2. We appoint Mr. Rahul Pant, Advocate as amicus curiae in this matter.
Let the Registry provide complete paper book to Mr. Rahul Pant.
3. Notice.
4. Mr. K. D. S. Kotwal accepts notice on behalf of respondents (ii) & (v) vice Mr. S. S. Nanda, Sr. AAG, Mr. K. D. S. Kotwal, Advocate appears for respondent No. (iii) and Mr. Aseem Sawhney, AAG accepts notice on behalf of for respondent No. (iv) and Mr. Adarsh Sharma, Advocate accepts notice on behalf of respondent No. (vi).
5. During course of hearing of this public interest litigation, which complains of gross violation of illegal constructions in violation of the Master Plan, Jammu, we find that there are glaring loopholes in the legislative schemes of the Building Bye-laws, which governs construction activities and are hopelessly insufficient. For instance, so far as compounding 3 WPPIL No. 01/2014 of unauthorized construction is concerned, reference is made to the major and minor deviations without specifically providing reference to the Regulation 11 of Jammu and Kashmir Control of Building Operation Act, 1988.
6. Section 257 of the Municipal Corporation Act, 2000 stipulates requirement of procurement of the completion certificate on completion of the erection of the building. Regarding this, notice has to be given to the Commissioner of the Municipal Corporation. Sub Section (2) thereof contains a prohibition against occupation or user of the building until the permission has been granted. However, the proviso to Section 257 contains a deeming permission enabling the builder/owner to circumvent the completion certificate.
7. Before us, counsel for the petitioner contends that most of the buildings are constructed either without any sanctioned plan or if permission stands granted, in violation thereof. It is further submitted that the completion certificate or occupancy certificate are never sought. If they are applied for, most buildings are occupied after the expiry of the period provided in the proviso, thus, taking advantage of the deeming permission.
8. The requirement of the completion certificate is relatable to the Building Bye-laws 4.4 and notice of violation 4.4. By virtue of bye-law 4.4, no permanent connection of water, sewer line or power can be given to a building by the concerned agency unless completion certificate is issued by the Municipal Corporation, Jammu.
9. In view of the above, pending further consideration, we direct as follows:
(i) The Jammu Municipal Corporation shall on an affidavit place a tabulation of the details of the properties, wherein application 4 WPPIL No. 01/2014 for completion certificate have been received by it for the time being since 1st January, 2014.
(ii) In the other columns of the tabulation, we shall be informed of the dates when orders accepting or rejecting applications were passed; the date on which the completion certificates are issued in respect of these properties; the dates on which the period of 30 days of receipt of the applications expired and correct status of the properties.
10. We are also informed that sewer connections are given by the Housing and Urban Development Department; water connections are given by the Public Health Engineering, Irrigation and Flood Control Department and electricity connections are given by the Power Development Department.
11. The respondent Nos. V and VI shall furnish in a tabulation the details of the properties to whom water, electricity and sewerage connections have been issued with effect from 1st January, 2014. PIL No. 36/2018
1. Apart from PIL No. 1/2014, PIL No. 36/2018 also relates to non-implementation of the Master Plan.
2. This public interest litigation was lastly listed on 31 st December, 2018. The same has not seen the light of the day at any point thereafter. While blame can be attributed to the Registry for not listing the same on the date fixed, there is equal, if not more responsibility on the person, who has filed the litigation to ensure proper prosecution thereof. There is nothing on record before us that the petitioner has taken a single step in the matter for ensuring its listing.
5 WPPIL No. 01/2014
3. Mr. Anil Sethi, learned counsel for the petitioner has submitted that the petitioner had taken steps for issuance of the notice and that this petition has been wrongly tagged with a bunch of PILs relating to Katra. This in our view is neither sufficient explanation nor it reflects any seriousness on the part of the petitioner in prosecuting the case.
4. In our view, this petition which was filed in public interest deserves to be dismissed on grounds of lack of interest and non-prosecution. However, in the interest of justice, we refrain from doing so.
5. Mrs. Monika Kohli, counsel for respondent No. 5 points out that this writ petition was tagged with WPPIL No. 29/2013 and WPPIL No. 1/2014 on the request of counsel for the petitioner.
6. Mr. Sachin Gupta, Advocate appears for respondent No. 4 submits that he shall file the reply within one week. Mr. K. D. S. Kotwal, Dy. AG seeks time on behalf of Mr. S. S. Nanda, Sr. AAG to file reply on behalf of respondent No. 1 and Mr. Ravinder Gupta, AAG seeks time to file response on behalf of respondent No. 2 & 3 and Mr. N. A. Choudhary, Advocate seeks time to file reply on behalf of respondent No. 6.
7. Let the replies be filed within six weeks from today.
8. We find that in any matter in which different departments of the Government of UT of J&K are appointed, separate counsels are appearing for every Department. This is resulting in not only delay in filing the counter affidavits, but is also creating a lot of confusion in the hearing of the matters. It is sometimes resulting in contradictory stands on behalf of the Government as also unnecessary adjournments being sought on account of non- availability of one or the other counsels.
6 WPPIL No. 01/2014
9. This is a matter which we have brought to the attention of the learned Advocate General repeatedly, who is unable to address this issue.
10. Let this order be placed before the Chief Secretary, Government of UT of J&K for taking a view in the matter and ensuring that the defence of cases on behalf of the multiple departments being impleaded as respondents in a single case as also representation on behalf of the Government in the Courts is streamlined.
List on 23rd April, 2020.
(RAJESH BINDAL) (GITA MITTAL)
JUDGE CHIEF JUSTICE
Jammu
06.03.2020
Karam Chand
KARAM CHAND
2020.03.13 17:33
I attest to the accuracy and
integrity of this document