HC asks Govt to revisit Panchayati Raj Rules for building permissions

Srinagar, Apr 29: The High Court of J&K and Ladakh on Wednesday directed the government to revisit the Panchayati Raj Rules, noting that certain provisions, particularly Rule 155 relating to building permissions, go beyond the rule-making powers conferred under the law.

A Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar issued the direction while dismissing an appeal by residents of various Panchayat Halqas of Block Harwan. In their plea, the residents had called into question the jurisdiction of the Jammu & Kashmir Lakes Conservation and Management Authority (LCMA) over their villages.

 “We would like the Government to revisit the Panchayati Rules framed by the Government in the exercise of its rule-making power and to delete Rule 155, which is beyond its rule-making power,” the Bench said.

The Court observed that “nothing prevents the Government from making a provision in the Panchayati Raj Act akin to the provisions made in the Development Act, the Municipal Act and the Municipal Corporation Act for regulating the constructions and development within the area of their respective jurisdictions”.

It said: “Unless such provision is made in the Act and proper infrastructure is created it would not be possible to regulate the erection and re-erection of buildings in the rural areas falling in different Halqa Panchayats”.

The Court underscored that it seems that because of enough land and space available in the villages, the people regulate their constructions as per the village customs and traditions and, of course, having regard to the easementary rights of the adjoining owners etc.

Similarly, under Section 54 of the Development Act also needs a fresh look and amendment so as to exclude the applicability of inconsistent provisions in other legislations like J&K Municipal Act, 2000, J&K Municipal Corporation Act, 2000 and Panchayati Raj Act, 1989.

“This would avoid ambiguity that emerges due to overlapping of certain provisions, more particularly the provisions relating to development i.e., erection & re-erection of Buildings etc.”

 The plea of the aggrieved villagers was that after the enforcement of the Panchayati Raj Act, 1989, and the constitution of Panchayat Halqas in Harwan, the LCMA ceased to have authority over construction activities in the villages that included HalqaFakirgujri A&B, Gandtal, Syedpora, Theed A&B and Dara A&B. They also questioned the demolition notices issued against certain constructions.

In its decision, the Division Bench upheld its single Judge’s judgment, holding that the entire Harwan block falls within a notified area under the J&K Development Act, 1970. Therefore, the area remains under the regulatory control of the LCMA, it said.

The Court held that the authority alone is competent to grant building permissions and act against unauthorised constructions in such notified areas.

Noting that there was no conflict between the Development Act and the Panchayati Raj Act, the court clarified that while Panchayats have a broad duty to regulate buildings and local activities, these lack the statutory framework, expertise, and enforcement mechanism to oversee construction permissions or ensure compliance with building norms.

The Court significantly observed that Rule 155 of the Panchayati Raj Rules, 1996, which provides for grant of building permissions by Panchayats, was framed without adequate legal backing.

“Rule 155, in our humble opinion, is beyond the rule-making power of the Government. Reading Rule 155 in its entirety, it is not discernible as to which rules, regulations and bye-laws would govern the construction in the Halqa Panchayat,” the Court said.

“The framing of Rule 155 is an outcome of total non-application of mind by the Government. In the absence of any specific provision in the Act, the Government by framing rules cannot create new rights and liabilities”

Otherwise also, 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 noted.