Jammu & Kashmir High Court
Court On Its Own Motion vs State And Ors. on 9 May, 2018
Bench: Ramalingam Sudhakar, Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
PIL No.404/2011, MP Nos. 01/2018, 04/2018, 05/2018, 04/2017 & 05/2017 c/w
connected petitions
Date of order: 09.05.2018
Court on its own motion vs State of J&K and ors
Coram:
Hon'ble Mr Justice Ramalingam Sudhakar, Chief Justice (Acting)
Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For the Petitioner(s) Mr. G.A.Lone, Amicus Curiae.
For the Respondent(s) : Mr. Jehangir Iqbal Ganai, Advocate General
Mr Fayaz Ahmed Mir, Dy.AG Mr Tahir Majid Shamsi ASGI .
Mr. G.A.Lone, appointed as Amicus Curiae, seeks indulgence of this Court to relieve him of the said position, stating that there would be conflict of interest. His request is acceded to.
Registry is directed to delete his name as Amicus Curiae in this matter.
Mr Nadeem Qadiri is already assisting the Court as Amicus Curiae in this matter and he will continue to do so.
List on 03.07.2018.
MP Nos. 04/2017 & 05/2017, 01/2018, 04/2018 & 05/2018.
In these applications, the applicants are essentially seeking permission of this Court to permit them to effect repairs/renovations/replacements in different buildings owned by the applicants.
It is pointed out that this Court vide its order dated 22 nd August, 2017 had directed that till further orders, no construction activity shall be carried out.
It is urged by the applicants including the learned Advocate General for the State that due to the inclement weather, some of the houses and buildings have PIL No. 404/2011 Page 1 of 3 suffered extensive damage and, therefore, need immediate repairs/renovations. However, due to the aforesaid order passed by this Court, they are not being permitted to do so. It is, thus, submitted that in view of the aforesaid development, the order passed by this Court dated 22nd August, 2017 needs modification. It is further brought to our notice that under similar set of circumstances, the 1 st Division Bench of this Court vide order dated 09.10.2017 passed in PIL No.484/2010 permitted the repairs/renovations of the existing structures in the Pahalgam area. Relevant paragraph Nos. 2 and 3 of the said order are reproduced hereunder:
"02.There are several applications before us today, details of which the counsel shall give to this court, so that on the next date of hearing those applications will be treated as having been disposed of by the present order as under.
03. We have already made it clear on the previous occasion that, all the construction activities are to be governed by the Master Plan which shall take care of the existing structures, both in the wildlife areas and the forest areas as also the buffer zones. We had already noted that the learned Advocate General had stated that the existing structures would continue to exist in such areas but no further constructions would be permitted and only repairs and renovations may be permitted in respect of such existing structures and, that too, on applications made to BOCA, which shall examine the applications on a case to case basis and the PIL No. 484/2010 Page 2 of 3 permissions, if any, would be granted strictly in terms of the Master Plan. He has also made it clear that, insofar as the permissible areas are concerned, fresh construction would be permitted but only in terms of the Master Plan and that, too, by BOCA. Therefore, there is no need to file applications before this Court. The applications ought to be filed before the BOCA, Pahalgam. The learned Advocate General has handed over to us a notification dated 12.07.2017 bearing SRO 287, whereby the Government, in exercise of powers under the Jammu and Kashmir Control of Building Operations Act, 1988, has appointed, inter alia, the Building Operation Controlling Authority (BOCA), for Pahalgam. The said authority consists of the following persons by designation:-PIL No. 404/2011 Page 2 of 3
1 Deputy Commissioner concerned District Chairman 2 Chief Town Planner concerned Division Member 3 Chief Executive Officer of the concerned Member Development Authority Secretary 4 Divisional Forest Officer concerned Member 5 Divisional Head, Ecology & Environment Member Department 6 Superintending Engineer PWD(R&B) of Member concerned District We have considered the submissions made.
In view of the averments made in the aforesaid applications coupled with the submissions made by the learned counsel appearing for the parties, we direct that there would be no fresh construction activity in the area, but the applicants and others may effect repairs/renovations in respect of existing structures, that too, after obtaining proper permission from Building Operations Controlling Authority as indicated in the order dated 09.10.2017 referred to above.
We, however, make it clear that the said authority shall examine the applications, if any, filed by the applicants and others for seeking permission and shall pass appropriate orders thereon in accordance with law and strictly in terms of the Master Plan.
With the aforesaid modification, the order dated 22nd August, 2017 shall continue to be in operation till further orders from this Court.
All the aforesaid applications are disposed of accordingly.
(Sanjeev Kumar) (Ramalingam Sudhakar)
Judge Chief Justice (Acting)
Srinagar
09.05.2018
Sanjeev
PIL No. 404/2011 Page 3 of 3