The Bench of Justice Sanjeev Kumar of the High Court of J&K and Ladakh, while deciding a Petition under Article 226 of the Constitution and elucidating the provisions of the Jammu and Kashmir Civic Laws (Special Provisions) Act, 2014 [“Act of 2014”], and the Jammu and Kashmir Development Act, 1970 [“Act of 1970”], upheld the validity of the policy promulgated by the Government vide SRO 391 dated 20th September, 2017 to regulate unauthorized constructions in certain notified areas. 

In the case at hand, the Petitioner, running a guest house at Shalimar, Srinagar wherein, admittedly, construction activity was undertaken by him without obtaining proper building permission from the competent authority, had moved the High Court challenging Clause 2.2 of SRO 391 of 2017 which, as per the petitioner, arbitrarily excluded the areas coming under the Lakes and Waterways Development Authority [“LAWDA”]. The Petitioner’s case was that the said clause, framed by the Government in terms of Section 3 of the Act of 2014 was beyond its competence, as the Government under the said Act was authorized to frame a policy to deal with or regulate unauthorized construction of buildings or structures in the local areas to which the Act applies, that is, local areas of Jammu, Srinagar and Katra notified under the provisions of the Act of 1970. It was contended that area Shalimar, where the offending structure of the petitioner is located, falls within the notified area of Srinagar Development Authority [“SDA”] 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 LAWDA. 

The Court, upon consideration of the matter, noted that it is clear that the Act of 2014 extends to the local areas of Jammu, Srinagar and Katra notified under the provisions of the Act of 1970, and in terms of Section 3 of the Act the Government was authorized to formulate a policy before 30th of September, 2017 to deal with and regulate unauthorized construction of the buildings or structures in the aforesaid local areas. Though, the Court observed, the area, Shalimar, was notified under the Act of 1970 and was falling under Srinagar Development Authority (SDA), nevertheless, the Government subsequently issued SRO 109 dated 27th March, 1997, constituting LAWDA and specifying the areas to be “the notified areas‟ for the purposes of Development Act to be administered by it, whereunder, area of Shalimar from Khasra Nos.1 to 1357 was also declared as falling within the jurisdiction of LAWDA. 

The Court, noting that there is nothing put on record by the Respondents to show that the area of Shalimar, which now falls within the jurisdiction of LAWDA in terms of SRO 109, has been excluded from the jurisdiction of SDA even though there is overlapping of jurisdiction between SDA and LAWDA with respect to certain survey numbers (1 to 1357) of village Shalimar, held, “However, SRO 109 of 1997 constituting LAWDA is a subsequent Statutory Order by the Government and the areas which are now declared as notified areas subject to the jurisdiction of LAWDA shall be deemed to have been excluded from the jurisdiction of SDA by necessary implication.”

Further, observing that the Government was well within its right to frame a policy only for the aforementioned three notified areas and exclude others, and it, thus, carried the mandate of the Act of 2014 when it promulgatedpolicy in terms of Section 3 of the Act of 2014 by issuing SRO 391 of 2017, the benefit of which was rightly made available to the constructions raised up to cutoff date only within the local areas of Jammu, Srinagar and Katra and the area coming under the J&K LAWDA was specifically excluded, held the challenge thrown by the Petitioner to Clause 2.2 of the Policy to be legally as well as factually incorrect, and thus, dismissed the Petition.