No Conflict Between J&K Development Act & Panchayati Raj Act On Building Regulation: High Court

The Jammu & Kashmir and Ladakh High Court has held that the J&K Development Act, 1970, and the J&K Panchayati Raj Act, 1989, do not conflict insofar as regulation of building permissions and their violations are concerned.The Court ruled that if an area is part of a Notified Area for which the J&K Lakes Conservation and Management Authority (LCMA) has been constituted, LCMA alone has jurisdiction to grant building permissions and ensure that no construction takes place without such permissions or in violation thereof.The Court was hearing a Letters Patent Appeal filed by inhabitants of Block Harwan challenging a Single Judge's order which dismissed their writ petition seeking a declaration that LCMA lacks jurisdiction over their villages.A Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar, while dismissing the appeal, observed, “... we do not find any conflict between the Development Act of 1970 and the Panchayati Raj Act, 1989 insofar as regulation of building permissions and their violations are concerned. If the area of Harwan is part of a Notified Area for which LCMA has been constituted, it is the LCMA and the Control of Building Authority which alone shall have jurisdiction to grant building permissions.”Background:The appellants, inhabitants of various Panchayat Halqas of Block Harwan, approached the High Court aggrieved by the extension of LCMA's jurisdiction over their villages and by notices issued under Section 7 of the J&K Control of Building Operation Act, 1998, threatening demolition of structures. The appellants contended that with the coming into force of the Panchayati Raj Act, 1989, and the constitution of various Panchayat Halqas of Block Harwan, the jurisdiction of all other authorities including LCMA stood excluded, and that only the authority under the Panchayati Raj Act had jurisdiction to regulate constructions.The respondents pleaded that the areas fell within the notified area for which LCMA was constituted vide SRO 109 subsequently substituted by SRO 57 which explicitly included CD Block Harwan. The Single Judge dismissed the writ petition on the ground that the appellants had no locus standi to challenge notices issued to individuals, and that the areas clearly fell within LCMA's jurisdiction.Court's Observations:The Division Bench framed two primary questions to adjudicate the matter of which one was to ascertain as to whether constructions in Block Harwan fall within LCMA's jurisdiction or would be governed under the Panchayati Raj Act, and whether the appellants were entitled to file a writ in representative capacity.Examining the Development Act, 1970, the Bench noted that Section 3 empowers the Government to declare any area a “local area” and constitute a Development Authority. Vide SRO 109 of 1997 and SRO 57 of 1999, the entire area of Harwan Block including the appellants' villages was notified and placed under LCMA's control. Section 30 of the Development Act requires permission from the Authority for any development within the notified area, and Section 25 deals with demolition of constructions carried out without permission.The Court then examined Section 54 of the Development Act, which provides for cessation of certain provisions of other Acts (Town Planning Act, Municipal Act, Town Area Act) from the date of operation of a plan. The Court observed, “the Development Act of 1970 does not supplant the provisions with regard to undertaking the development i.e., erection and re-erection of buildings contained in other statutes.”Turning to the Panchayati Raj Act, the Bench noted that Section 12(2) imposes a duty on Halqa Panchayats to make provision for regulation of buildings, shops and entertainment houses. However, the Court held that this duty does not include the grant of building permissions, checking violations, or ordering demolition. The Court observed, “We do not find any conflict between the Development Act of 1970 and the Panchayati Raj Act, 1989 insofar as provisions with regard to constructions and reconstructions in the notified areas under the Development Act are concerned.”The Court then examined Rule 155 of the Panchayati Raj Rules, 1996, which provides a detailed procedure for seeking permission to erect or re-erect buildings in Panchayat Halqa areas. The Bench held that Rule 155 is beyond the rule-making power of the Government, observing, “In the absence of any specific provision in the Act, the Government by framing rules cannot create new rights and liabilities. Otherwise also, as pointed out above, Rule 155 would be totally unworkable unless there is a developmental plan framed for the Halqa Panchayat and specific building bye-laws are framed to give effect thereto.”The Court also addressed Section 3 of the Panchayati Raj Act, which gives it an overriding effect over inconsistent provisions in other laws, and held that there is no inconsistency between the two enactments on this subject.However, the Court made significant...

No Conflict Between J&K Development Act & Panchayati Raj Act On Building Regulation: High Court

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No Conflict Between J&K Development Act & Panchayati Raj Act On Building Regulation: High Court

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