Jammu & Kashmir High Court - Srinagar Bench
Mujeeb Indrabi vs State Of J&K And Ors on 24 December, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CMP No. 2262 of 2013 In PIL No. 05 of 2013 Mujeeb Indrabi Petitioners State of J&K and ors Respondents !Mr. M. A. Qayoom, Advocate Mr. R. A. Jan, Sr. Advocate, Amicus Curiae with Mr. Mukhtiar, Advocate ^Mr. S. A. Naik, AAG Mr. F. A. Mir, Advocate SMC Mr. G. J. Bala, Advocate, SDA Honble Mr. Justice M. M. Kumar, Chief Justice Honble Mr. Justice Ali Mohammad Magrey, Judge Date: 24/12/2013 : J U D G M E N T :
Per- Magrey-J
1. The real morality and prosperity is in obedience to law that drives the societal chariot by its troika of rights, obligations and consequences. Misuse of rights or evasion of obligations by resort to machinations coupled with avoidance of consequences in connivance with, or under patronage by, the persons at the helm of affairs is bound to have chaotic repercussions. The cause propounded by this Public Interest Litigation is a paradigm, demonstrative of extreme apathy of the authorities and wanton violation of the municipal laws and the Master Plan of the city of Srinagar having devastating repercussions.
2. The prayers made in the instant Public Interest Litigation are two fold: first, to direct the respondents to make Srinagar hawker free city; and second, to direct the concerned respondents to remove all illegal constructions in Srinagar and, in that regard, to give supervisory powers to the Divisional Commissioner, Kashmir. Presently, we are dealing with only the second prayer made in the petition. It is stated in the petition that Srinagar Municipal Corporation was given the authority to regulate constructional activities in the Srinagar city, but the said Corporation has failed to perform its duties as a result mushroom growth of illegal structures has taken place in the city which has defaced it. It is also stated that such activities have also led to encroachment of State land and the cumulative effect thereof is huge inconvenience to general public, frequent traffic jams, environment pollution, noise pollution.
3. On notice being issued, on 08.05.2013 the learned Advocate General appeared and made a rather conceding statement at the Bar, which was taken on record. The relevant paragraph of the order passed by this Court on the relevant day is reproduced hereunder:
Mr. Qadri, learned Advocate General, has made reference to various parts of City highlighting wholesome violation of Master Plan. According to the learned Advocate General, residential areas are being used for commercial purposes by converting residences into big malls without seeking permission from any authority. There is no effective control exercised by Srinagar Municipal Corporation, respondent no. 8. The aforesaid revelation shows blatant violation of Master Plan of the city of Srinagar and various statutory provisions.
4. Viewing the seriousness of the issue, more fairly corroborated by none other than the Advocate General of the State, this Court appointed Mr. R. A. Jan, Sr. Advocate as Amicus Curae to assist the Court. We also sought reports from the Srinagar Municipal Corporation and the Srinagar Development Authority. Whereas the Srinagar Development Authority has not so far filed any pertinent report, the Srinagar Municipal Corporation has filed five status reports. In its report filed in response to the Court order dated 22.05.2013, the Srinagar Municipal Corporation, while giving an overview of its working, made certain revealing statements. It was stated therein that:
i) That Master Plan 2000-2021 has been formulated for Srinagar Metropolitan area under the Development Act which has been duly approved by the Government;
ii) That the total area of the Srinagar City has been divided into three zones for control of building operations and these zones are under the respective control of Srinagar Municipal Corporation to the extent of 202.7 Sq Kms; Srinagar Development Authority to the extent of 157.1 Sq. Kms and Lakes & Waterways Development Authority to the extent of 59.2 Sq Kms.;
iii) That under the Master Plan 2000-2021 a small chunk of area from Dalgate to Budshah Chowk has been kept for commercial use, which does not co-relate with phenomenal urban population increase which, as per the census 2011, has touched 11.47 lakhs;
iv) That the need for accommodation for tourists visiting the Valley has increased manifold and against the present demand of one lakh rooms, there are only twenty five thousand rooms available. With this background, some people in more areas, namely, Rajbagh, Jawahar Nagar, Karan Nagar, Bishamber Nagar, Khanyar, Saida Kadal, Nishal, Munawar Abad, Guft Ganga, which though permissible (sic, impermissible?) as per the use of Master Plan increases demand for other commercial activities like restaurants, shops in these areas which result in violation of Master Plan and the laws under Control of Building Operations Act 1968;
v) That the city of Srinagar is divided into 34 Wards headed by Ward Officers who are solely responsible for any unauthorized construction / violation in their respective areas. Besides, there are 75 Building Inspectors who are responsible for regulating the building activities in their respective jurisdictions;
vi) That the area under the Control of Srinagar Municipal Corporation has been divided into four Zones, namely, East, West, North and South and each such zone is headed by one additional Enforcement Officer;
vii) That over a period of time violations have taken place;
viii) That the SMC has removed 115 encroachments in the last two years and has sealed 6 buildings which had been illegally converted from residential to commercial complexes;
ix) That in Jawahar Nagar and Karan Nagar areas, 42 Show Cause Notices have been issued against the violators who have converted their residential premises into commercial or have violated the set backs as provided in the building permissions issued in their favour. These Show Cause Notices have been issued for sealing such illegal & unauthorized structures;
x) That the field staff responsible for monitoring building activities has been directed to conduct survey for identification of structures converted from residential to commercial buildings/complexes;
xi) That the BOCA, over a period of time, has issued some building permissions in violation of Master Plan and against the existing Control of Building Operation Rules.
In its status report filed in response to the Court order dated 23.07.2013, the Srinagar Municipal Corporation stated as under:
i) That 45 unauthorized constructions were demolished during the month of July, 2013;
ii) That 42 Show Cause Notices were issued against violators who have converted their residential premises into commercial buildings or have violated the setbacks as provided in the building permissions issued in their favour;
iii) That seven Show Cause Notices under Section 8 of the Control of Building Operations Act, 1988 for sealing the structures raised in violation of Master Plan were issued in the month of July, 2013;
It may be mentioned here that on 23.07.2013, when the matter came up for further consideration, this Court desired the learned Amicus to apprise the Court about any information received by him directly or indirectly about any such violations so that action against the violators as well as the officers who support such violations is got initiated. The learned Amicus, accordingly, submitted a report stating therein that he had received through e-mail some information of vital bearing in context of the issues related to the PIL. The e-mail, which had originated from one Mushtaq Sidiqi of Karan Nagar, Srinagar, contained three attachments. The first attachment spoke of a communication addressed by the e- mailer to the learned Advocate General while he (the e-mailer) had been posted as Additional Secretary to Government, Housing and Urban Development Department. The information thus received spoke of major Master Plan violations in Karan Nagar area which, according to the e-mailer, had not been disclosed by the Municipality before this Court. The learned Amicus in his aforesaid report also mentioned and suggested certain measures which are reproduced below:
The real cause to be addressed is to how the enforcement of the Building Laws consistent with the Legislative intent and purpose underlying the aforementioned Building Laws in force can be secured / assured.
In my humble submission the only way to address and tackle effectively the real cause behind rampant violations of Building Laws with impunity is to make the lapse / inertia on the part of Enforcement Agency in any manner, form and manifestation, an offence of misconduct punishable under Section 5(2) Prevention of Corruption Act.
The object can be achieved by amending the Criminal Law suitably, making the acts and conduct incompatible with dutiful conduct of the members of the Enforcement Agencies incharge and operating in their respective jurisdictions, criminal misconduct punishable under Section 5(2) of the Prevention of Corruption Act. The Srinagar Municipal Corporation was directed to respond to the information so received.
5. In response, the Srinagar Municipal Corporation in its status report gave details of certain specific structures raised in contravention of the building permissions granted by it. However, it was brought to the notice of this Court that the concerned persons have approached either civil courts or the learned Writ Court and obtained orders of restraint against the Municipal Corporation. It was also stated that in certain cases, specified in the status report, the violations have been compounded by the Special Tribunal.
6. Broadly speaking, it has come to fore that there have been gross violations of Master Plan in that:
i) residential houses in areas earmarked in the Master Plan as residential have been converted into commercial complexes;
ii) residential houses in areas earmarked in the Master Plan as residential have been converted into Guest Houses / Hotels / Restaurants;
iii) there has been change in land use without permission from the prescribed authority / authorities;
iv) certain illegal constructions have come up encroaching upon Government / State lands;
v) the BOCA, over a period of time, has issued some building permissions in violation of Master Plan and against the existing Control of Building Operation Rules;
vi) there has been rampant violation of building permissions granted by BOCA going on unabated;
vii) the J&K Special Tribunal has compounded major violations committed by the builders;
One wonders whether all these violations could have taken place without the connivance of, and patronage by, the officers and staff of the Srinagar Municipal Corporation, particularly those who are, or were, posted in these respective areas designated by the Municipal Corporation as Wards and Zones. It is not the case of the Corporation that such huge structures have come up overnight. It is not indicated anywhere what immediate actions were initiated by the Field Staff under law to prevent such violations. It is not the case that laws do not provide for nipping the evil in the bud. We shall refer to the relevant law at appropriate place in this judgment.
7. On 30.09.2013, taking note of the status reports filed by the Municipal Corporation, this Court passed a detailed order, inter alia, observing as under:
2. Response to the suggestions made has been filed by respondent no.8, Srinagar Municipal Corporation. The factum of illegal constructions has been accepted and it has been submitted that constructions have come up one decade back and brief history of such constructions have been furnished in para 4(a) to 4(i). All the buildings appear to be constructed in violation of Master Plan.
3. According to the stand taken by respondent no.8, a show cause notice has been issued to various violators on 06.03.2009 and demolition orfder was passed on 16.03.2009. Thereafter, further show cause notices have been issued on 26.02.2013.
We fail to understand as to why after passing the demolition orders on 16.03.2009 the necessity of issuance of another show cause notice on 26.02.2013 was felt. By the aforesaid action of the respondents, the object and scheme of the Act known and styled as Jammu and Kashmir Control of Building Operations Act 1988 has been violated. Therefore, we direct the Srinagar Municipal Corporation to swing into action and take appropriate steps for sealing of the buildings belonging to any violators as per the show cause notices and the demolition order passed on 16.03.2009 or thereafter. In case of any resistance the SMC is free to seek help from the Police. The Director General of Police is directed to provide any such help, if required by SMC. The needful shall be done within three days and status report be filed with the Registrar Judicial of this Court on 04.10.2013. This Court vide aforesaid order also observed that no Court or Tribunal is to entertain any litigation belonging to the subject matter involved in the PIL This Court directed the transfer of the litigations pending before the civil courts or the Tribunal concerning the subject matter of the PIL to the High Court with further direction that the parties concerned be notified that the matters stand transferred to the High Court.
8. In its latest report submitted to the Court, it was stated that consequent upon issuance of the sealing orders by the Municipal Corporation, it had sealed 37 structures particulars whereof were given in the status report. It was also stated that sealing orders in respect of three other violators could not be carried out because two of them had filed writ petitions (OWP no.803/2013 titled Muzaffar Ahmad Shah v State of J&K and OWP no.813/2012 titled Abdul Ahad Dar v BOCA) and the third person had filed CIMA no.153/2013 titled M/s Umer Pharmaceutical Distributors v. Chairman BOCA, and that stay/status-quo orders were in operation in these cases.
9. Applications have been filed by the aggrieved persons, whose structures have been sealed by the Municipal Corporation, seeking vacation of the order passed by this Court on 30.09.2013. The present application is one such application filed on behalf of 13 persons. We deem it appropriate to mention contention of each of the applicant raised in the application and the violation committed by each of them as reflected in the report of the Municipal Corporation submitted before the Court.
A) Applicant nos. 2 & 3:
Their contention is that they were granted permission for construction of two, two-storey residential houses as per colony type design and that there has been no violation. The report of Municipal Corporation shows that these structures have been converted into Hotel, named, Hotel Kaiser, Jawahar Nagar;
B) Applicant no. 4 & 5:
Their case is that they were permitted to raise construction of a three storeyed residential house at Jawahar Nagar and that they have raised the construction strictly in accordance with the permission so granted. The report of the Municipal Corporation is that they have converted the structures into full- fledged commercial complex.
C) Applicant nos. 6, 7, 8, 9, 10:
Applicant no.6 is stated to have been permitted to re-construct his double storeyed gutted residential house as per colony type design. As per Municipal Corporations report, he has converted the building into a commercial site where furniture business under the name and style of Zauri Furniture, is being run.
Applicants 7, 8, 9 and 10, too, are stated to have been permitted to reconstruct double storeyed gutted residential house as per colony type design with compound wall. They are also stated to have been permitted to construct open garage. Their claim is that they have raised the constructions strictly in accordance with the building permissions granted in their favour. They have, however, violated the building permission and raised a three storeyed building with attic, semi detached full commercial complex being run under the name and style of Bhat furniture.
D) Applicant nos.11 & 12:
Their case is that they were permitted to raise construction of a two storeyed commercial complex instead of residential house at estate Tashwan. They were later permitted to raise 2nd floor for residential purposes. Their case is that they were served a notice for having violated the ground coverage set backs, height of the structure and floor space index etc. E) Applicant no. 13:
His case is that he was permitted to reconstruct existing two storeyed residential house with attic and a garage by the BOCA. The said applicant is stated to have committed deviations in the building plan and converted the house into a commercial premises / clinic.
10. The learned Amicus has filed his objections to the application wherein he has, inter alia, submitted that on the own showing of the applicants the structures / buildings meant for residential use have been used for commercial purposes without any sanction or authority of law and that, in the said admitted scenario, the order of the Honble Division Bench dated 30.09.2013 is fully warranted and justified in law.
11. We have heard learned counsel for the parties vis-`-vis 12 of the applicants in the present application, barring applicant no.1.
12. At the very outset it needs a mention here that the sealing of the structures in question has been ordered by the Srinagar Municipal Corporation of its own pursuant to the orders of demolition and/or Show Cause Notices in terms of the powers conferred on it under the relevant provisions of law after being satisfied that such structures had been raised either in violation of the plans of such building permissions granted in their favour or converted into commercial sites in violation of the Master Plan and use of buildings for which permissions were granted in their favour. It having come on record that the officers and staff of the Municipal Corporation was dealing with the matter, for whatever reason, in a sloppy manner, this Court impressed upon the Corporation to swing into action and act upon its orders and notices. Even in the very first status report, the Municipal Corporation reported that it had sealed six of such structures.
13. In order to persuade this Court that conversion of residential houses into Guest Houses was permissible under law, Mr. Qayoom, learned counsel, representing the applicants, referred to Government order no.224-TSM of 2012 dated 19.04.2012 issued in supersession of Annexure to Government order no.72- TSM of 1995 dated 26.4.1995, the regulations notified vide Government order no.129-TSM of 1995 dated 14.08.1995 and also the subsequent orders regarding the package of incentives for tourism. In terms of the aforesaid Government order dated 19.04.2012, the Government has notified the rules governing package of incentives for tourism as an industry as contained in Annexure-A thereto. Annexure-A is entitled as the J&K Tourism Incentives Rules, 2012. Particular reference was made to clauses (f) & (n) of Definition Rule 2 of these Rules. Clause (f) reads as under:
Conversion means conversion of an existing residential house into a paying guest house by making available some rooms for paying customers. Conversion may also include, if necessary up-gradation or alterations or additions to the existing structure including provision of sanitary fitted bath rooms/toilets (sic) converting into a paying guest house must provide sanitary fitted bath rooms/toilets. Clause (n) under Rule 2 reads as under:
Paying Guest House means a boarding / lodging facility in an existing residential house created by making available some rooms within the house or by addition of one or two rooms to the existing structure and provided to tourists on payment with a views to afford to them an opportunity of staying as part of the unit. The accommodation can be upto 8 beds in single, double or three to four bedded rooms with attached or common sanitary fitted bathrooms / toilet facilities. Annexure I to the aforesaid Government order notifies the areas eligible for the incentives. In District Srinagar, it specifies the areas eligible for such incentives as being the areas around Fort Ziarat Sharief Makhdoom Sahib, Jogiwan, Khanqah Mohla, Peer Dastagir Sahib (Khanyar), Nigeen-Eastern side area, Hazratbal, Saida Kadal, Peer Haji Mohammad Sahib Saraf Kadal, Naqashband Sahib, Khawajabazar, Aali Masjid (Heritage Masjid), Iddgah, Jamia Masjid Central, Maharaj Gunj, Zadibal, Harwan, Ishber, Brain Nishat, Syed Merak Shah Shalimar, Burzehama, Barzula, Hyderpora, Gogo, Wanbal, Rawalpora, Sanat Nagar. Learned counsel for the applicants in this behalf has referred to and relied upon a decision of the Supreme Court in Kewal Krishan Gupta v. J and K Special Tribunal, AIR 2005 SC 2578.
14. Irrespective of the fact that Jawahar Nagar and Karan Nagar areas are not included in the aforesaid notified areas, the question is whether permissibility of the conversions under the aforesaid regulations governing incentives would also regulate the provisions of the Master Plan drawn under altogether a different Act with which the Tourism Department has no concern at all? In order to find answer to this question, it becomes imperative to refer to the source of the Master Plan.
15. The source of the Master Plan, admittedly, lies in the Jammu and Kashmir Development Act, 1970. Section 3 under Chapter II of the Act provides for declaration of local area and constitution of Development Authority. Section 7 under Chapter III, providing for civic survey of, and master plan for the area, reads as under:
(1) An Authority shall, as soon as may be, carry out a civic survey of and prepare a master plan for the Loal Area for which it is constituted.
(2) The master plan shall.
(a) define the various zones into which the Local Area may be divided for the purpose of development and indicate the manner in which the land in each zone is proposed to be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out; and
(b) serve as a basic pattern of frame-work within which the zonal development plans of the various zones of the Local Area may be prepared.
(3) The master plan may provide for any other matter which is necessary for the proper development of the Local Area.
16. Section 9 of the Act provides for submission of plans to the Government for approval. Section 10 provides the procedure to be followed in the preparation and approval of Plans. Sub-section (1) of Section 10 provides that before preparing any plan finally and submitting it to the Government for approval, the Authority shall prepare a plan in draft and publish it by making a copy thereof available for inspection and publishing a notice in such form and manner as may be prescribed by rules made in this behalf inviting objections and suggestions from any person with respect to the draft plan before such date as may be specified in the notice. Section 11 provides for date of operation of plan. Section 12 under Chapter IV provides the procedure for modifications to the plan. Section 13 of the Act under Chapter V development provides that after a notice approving the date of operation of the Plan is published under Section 11, no person including the department of Government shall undertake or carry out development of any land or building in the zone unless permission for such development has been obtained in writing from the Authority in accordance with the provisions of this Act. The word development under definition clause 2(d) with its grammatical variations has been defined to mean carrying out of building, engineering, quarrying or extraction or manufacture of building materials or other operations in, or, over or under land, or erecting or re-erecting of any building or land and include re-development. Section 15 of the Act relating to User of land and buildings provides as under:
After the coming into operation of a plan in a zone no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan.
Provided that it shall be lawful to continue to use, upon such terms and conditions as may be prescribed by regulations made in this behalf, and land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force. It thus becomes clear that once the plan comes into operation in a zone, no building or land can be used otherwise than in the manner as may be provided in the plan.
17. However, Rule 13 of the Rules framed under the Act permit amendments of the Master Plan at the expiry of every five years in accordance with the procedure prescribed by the Act and the Rules as if the amendments were a new Master Plan. The first proviso to Rule 13 further permits amendment to the Master Plan or any part thereof at any time prior to the expiry of five years in accordance with the aforesaid procedure, if the Development Authority is of the opinion that, having regard to the circumstances prevailing at any particular time, it is necessary so to do.
18. The Master Plan 2000-2021 for Srinagar was approved by the Government vide Cabinet Decision no.11/1 dated 16.01.2003. It was notified vide Notification SRO 28 dated 30.01.2003. At page 189 of the Master Plan, the Jawahar Nagar area has been declared as predominant residential zone. Similarly, Karan Nagar has been declared a predominant residential zone.
19. It is thus clear that any modifications or amendments in the Master Plan can be made only by the Development Authority in accordance with the procedure prescribed therefor in the Act and the Rules framed thereunder. Once a particular area has been declared as Residential in the Master Plan, it can be changed only by way of modification or amendment in the Master Plan in the prescribed manner. That being the legal position, the rules governing grant of tourism incentives would not alter the provisions of the Master Plan. It is not the case of the applicants that any modification or amendment has been effected in the Master Plan in terms of Section 12 of the Act or Rule 13 of the Rules framed thereunder. Reference to the Tourism Incentive Rules, 2012 is, therefore, misplaced.
20. In this connection, Mr. R. A. Jan, learned Amicus, also submitted that it is not that law does not permit change of the use of land or building, but there is a proper procedure envisaged by law in that behalf. He submitted that since the applicants have not chosen that remedy provided under law, their brazen acts of violation of law and/or the building permissions cannot be condoned. Reference in this connection was made to Section 258 of the Jammu and Kashmir Municipal Corporation Act, 2000. The provision of law, referred to, is extracted hereunder:
258. Restrictions on user of buildings and removal of dangerous buildings.
(1) No person shall, without the written permission of the Commissioner, or otherwise than in conformity with the conditions, if any, of such permission.
(a) use or permit to be used for human habitation any part of a building not originally erected or authorized to be used for that purpose or not used for that purpose before any alteration has been made therein by any work executed in accordance with the provisions of this Act and of the bye-laws made thereunder;
(b) change or allow the change of the use of any land or building;
(c) convert or allow the conversion of one kind of tenement into another kind.
(2) (3) (4) (5) (6)
Admittedly, the applicants have not chosen the aforesaid course and they seem to have acted in total disregard of the law.
21. Coming to the decision of the Supreme Court in Kewal Krishan Gupta v. J and K Special Tribunal (supra), cited by the Mr. Qayoom, in that case there were two very important attendant factors noticed by the Supreme Court. One was that the Tribunal had compounded the violation and the Municipality had raised a demand for the compounding fee; and second was that the high powered body comprising the Administrator of Jammu Municipality as Chairman; with the Vice- Chairman of Jammu Development Authority; MD Housing, J&K State, Jammu; Chief Town Planner, JDA Jammu as Members, and Executive Officer, Jammu Municipality had taken the view that commercial activities could be permitted at selected points along the B. C. Road. The relevant portion of the judgment is reproduced hereunder:
We have already referred to the Minutes of the meeting held on 6.1.1998 and the decision taken at the said meeting. The meeting was headed by the Administrator of the Jammu Municipality as Chairman with Vice-Chairman of the Jammu Development Authority, M. D. Housing, J&K State, Jammu, Chief Town Planner, J. D. A., Jammu as Members and Executive Officer, Municipality, JMU as Member Secretary. This High Powered body, which was aware of the manner in which development was taking place in the city of Jammu, took notice of the fact that there was non-implementation of planning proposals envisaged in the Master Plan on account of high density of commercial activities along several roads, B. C. Road being one of them. It was precisely for this reason that the High Powered body took the view that commercial activities could be permitted at selected points along the said road and opined B. C. Road is totally commercial at present and to thrust residential activity on the area would be putting cart before the horse. In areas like B. C. Road whenever there is an application for grant of B. P. the applicant submits a plan for residential purposes where in fact he has c commercial activity in mind. This results in loss of revenue to the Jammu Municipality / J. D. A. / J&K Housing Board together with hassle of unauthorized constructions. It was, therefore, decided in the meeting to come up with a proposal where areas like B. C. Road would be identified so that the same is submitted to the Government for issuing necessary modification in the land use as envisaged in the Master Plan approved by the government in 1978. In the case at hand, it is nobodys case that any authority, muchless the competent authorities have ever thought on such lines. On the other hand, it is the admitted case of the Srinagar Municipal Corporation that violations have taken place. The judgment, therefore, is distinguishable on facts.
22. Mr. R. A. Jan, learned Amicus, on the other hand has cited and relied upon the decision of the Apex Court in Dipak Kumar Mukherjee v. Kolkata Municipal Corporation, AIR 2013 SC 927. In the aforesaid case, tracing the settled position of law from K. Ramadas Shenoy v. Chief Officers, Town Municipal Council, (1974) 2 SCC 506, to Priyanka Estates International Pvt. Ltd. v. State of Assam, (2010) 2 SCC 27, the Supreme Court, in paragraphs 8 & 9 of the judgment, has observed as under:
What needs to be emphasized is that illegal and unauthorized constructions of buildings and other structure not only violate the municipal laws and the concept of planned development of the particular area, but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorized constructions are supported by the people entrusted with the duty of preparing and executing master plan / development plan / zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to poor and disadvantages section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally / unauthorizedly constructed multi-storied structure raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors.
We have prefaced disposal of this appeal by taking cognizance of the precedents in which this Court held that there should be no judicial tolerance of illegal and unauthorized constructions by those who treat the law to be their subservient, but are happily to note that the functionaries and officers of Kolkata Municipal Corporation (for short, the Corporation) have been extremely vigilant and taken steps for enforcing the provisions of the Kolkata Municipal Corporation Act, 1980 (for short, the 1980 Act) and the rules framed thereunder for demolition of illegal construction raised by respondent No. 7. This has given a ray of hope to the residents of Kolkata that there will be zero tolerance against illegal and unauthorized constructions and those indulging in such activities will not be spared. It may be noted here that in the aforesaid case, the appellant before the Supreme Court, a private person, had filed a writ petition in the High Court for issue of a direction to the Municipal Corporation to demolish the illegal construction by respondent no. 7. The writ petition was disposed of by the learned Single Judge with direction that the objection raised by the writ petitioner against the unauthorized construction be decided by the competent authority after hearing the affected parties. Simultaneously, it was ordained that no illegal construction be carried out in the premises in question. Respondent no. 7 therein continued with the construction, though in violation of the sanctioned plan. The writ petitioner filed another writ petition for demolition of the unauthorized construction etc. The learned Single Judge directed demolition of the unauthorized structure. Respondent no. 7 therein immediately filed an application for regularization of unauthorized portion of the building and simultaneously filed an appeal before the Division Bench. The Division Bench disposed of the appeal directing the competent authority of the Corporation to take appropriate decision in accordance with law after complying with the principles of natural justice. The writ petitioner before the High Court, feeling aggrieved of the Division Bench direction, filed a Special Leave Petition against the same before the Supreme Court. The Supreme Court found that respondent no. 7 therein was guilty not only of violating the sanctioned plan and the relevant provisions of the Municipal Corporation Act and the Rules framed thereunder, but also of cheating those who purchased portions of unauthorized construction under a bona fide belief that respondent no. 7 therein had constructed the building as per the sanctioned plan. The Supreme Court allowed the appeal in the following terms:
In the result, the appeal is allowed and the impugned judgment is set aside. With a view to ensure that the illegal construction raised by respondent No. 7 is pulled down without delay, we issue the following directions:
1. Within three months from today, respondent No. 7 shall pay the price of the flats etc. to the purchasers with interest @ 18% per annum from the date of payment.
2. The occupiers of illegal / unauthorized construction shall vacate such portions of the building within next one month.
3. Within next one month, the Corporation shall demolish unauthorized construction after taking adequate precautionary measures.
4. Respondent No. 7 shall pay cost of Rs.25,00,000/- for brazen violation of the sanctioned plan and continuance of illegal construction despite stop work notice. The amount of cost shall be deposited with the Kolkata State Legal Service Authority within three months and the same be utilized for providing legal aid in deserving cases. The above judgment of the Supreme Court squarely covers the issues those are sought to be raised by the applicants before us.
23. Mr. Qayoom, next submitted that even otherwise any violation of the Master Plan would be immaterial in view of the fact that the Government in the Urban Development Department and the Vice Chairman, Srinagar Development Authority vide letter no.SDA/VC/001/2013 dated 11.01.2013 have invited suggestions / objections from stakeholders and public at large for the Draft Master Plan for Srinagar. In this connection, it would suffice to say that in this Public Interest Litigation we are only concerned with the violations alleged vis-a-vis the law and/or the Master Plan as it exists now; not what it would be, or what it might be, in a future time. Public interest litigations always relate to the situations as they obtain at the present times, of course, with necessary fall out for future; it does not relate to actions or the situations those may take place or exist in future times.
24. During the course of proceedings in this case, we have received complaints supported by photographs to the effect that the Srinagar Municipal Corporation is resorting to pick and choose in the matter of issuing notices to the violators. Given the facts and figures those have come on record, we cannot brush aside such complaints. The authorities of the Municipal Corporation, in order to shield its indolence etc., might really be exhibiting only the tip of the ice berg. It, therefore, becomes necessary to have a cross check of the violations brought to the notice of this Court by the Municipal Corporation as also to detect the actual number and extent of such violations. In order to achieve that objective, we propose to appoint a committee comprising of a reputed Government Officer, a retired Judicial Officer of the rank of Principal District and Sessions Judge and a member of civil society of good repute, who shall undertake the exercise of detection of such violations in the city and make a report to this Court.
25. It may be true that economy of the Valley of Kashmir in general and that of the City of Srinagar in particular is dependent on tourism. It may also be a fact that there is meager industrial activity in the Valley and consequently the employment avenues are far and in between. Going by the figures brought on record by the Srinagar Municipal Corporation, as against the requirement of one lac rooms, there are only 25,000 rooms available in the City to meet the tourist demands. The Tourism Department has sought to extend incentives for conversion of residential houses into guest houses etc. to accommodate tourists even beyond the established and recognized tourist areas and deep into residential areas. At the same time, Srinagar being the face of the Valley, there is severe need to maintain a harmony between the nature and the design of the city dwellings. It would not be desirable to convert the City into a concrete jungle. There has to be a sincere endeavour to have synchronization between nature around and human development. All the same the Court cannot turn its back on the whole sale violations resulting from illegal and unauthorized constructions which may have come up on account of misuse of the permission granted by the Municipal Corporation. For example, if a small area of a residential house is permitted to be used as consultation room by a doctor the whole building could not be converted into a Nursing Home and hospital. There may be a number of such examples where converting a small area for the use of imparting instructions/tuition, the whole building has been converted into a full fledged academy. These illegal and unauthorized constructions have come up on the edges of roads without even leaving parking spaces and without maintaining the prescribed limit of height etc. This has resulted in parking of vehicles on the road to be used by common people blocking the passage of vehicular traffic and causing serious inconvenience to the pedestrians who are unable to walk freely.
26. As referred hereinabove, the Srinagar Municipal Corporation has stated that an area of 157.1 square kilometers of the City of Srinagar falls under the control of Srinagar Development Authority. It is not known which localities constitute the area that falls under the control of the Development Authority. We do not have any information about the situation in such localities and area vis-`- vis the constructions. Ordinarily, the Srinagar Development Authority having been put on notice and directed to file its status report, such detailed information ought to have since come on record. But that has not been.
27. There is yet another important aspect of the matter. It is not denied by the Srinagar Municipal Corporation that huge and large number of constructions have come up in the City in violation of not only the building permissions granted, but also in contravention of the relevant laws. Certainly these illegal constructions must have been raised within the knowledge and active connivance of the concerned field staff of the Corporation, and, may be, for ulterior motives. The Corporation has not disclosed anywhere what steps it has taken to identify such defaulting staff members and what action it proposes to take against them.
28. Coming back to CMP no. 2262/2013, it is to be borne in mind that this petition has basically raised serious issues about the working of the Srinagar Municipal Corporation. The Corporation now having awakened and vigorously sought to discharge the duties cast on it under the relevant statute(s), this Court in these proceedings would be loath in interfering with such statutory course being pursued by the Corporation in the larger public interest. We make it clear that any reference made by the Corporation in any of its Show Cause Notices to the orders passed by this Court, especially order dated 30.09.2013, is misplaced. The Corporation is bound to discharge its duties strictly in accordance with the law. Of course, this Court would continue to monitor the progress achieved by the Corporation in that behalf and ensure that it does not resort to pick and choose in the matter.
29. It hardly needs a mention that sealing of structures in exercise of powers conferred under Section 8 of the Control of Building Operations Act, 1988 is not the culmination of the action required to be taken by the Municipal Authorities. They are required to proceed ahead in the matter in accordance with the mandate of Sections 7 and 8 of the aforesaid Act. On 30.09.2013 this Court has placed an embargo on the Tribunal to entertain any litigation pertaining to the subject matter of PIL no. 05/2013. The aforesaid order, in the case of the applicants, is modified leaving it open to them to avail the legal remedy, if any under the provisions of the Act before the Jammu and Kashmir Special Tribunal against the sealing order or any other action which may be taken against them by the Municipal authorities. We have been informed that the Special Tribunal functions with a Judicial member. If any application is filed by the applicants, then the Bench of the Tribunal may proceed to hear the matter and the Bench must always be comprised of a Judicial member. It is free to pass orders according to the sanction of law. The order of the Tribunal may first be placed before the Bench dealing with PIL no. 05/2013 before giving effect to such orders.
30. CMP no.2262/2013 is, accordingly, disposed of.
(Ali Mohammad Magrey) (M. M. Kumar)
Judge Chief Justice
Srinagar
24/12/2013
Syed Ayaz, Secretary