Fayaz Bukhari
Srinagar, Dec 25: In a landmark judgement to preserve the beauty of Srinagar city, the Jammu and Kashmir High Court today directed the Srinagar Municipal Corporation (SMC) to demolish the structures that have come up in Srinagar city in violation of the Srinagar Master Plan.
While disposing off a Public Interest Litigation (PIL) tilted Mujeeb Indrabi versus State and others a Division Bench of the High Court comprising Chief Justice M M Kumar and Justice A M Magrey today directed the SMC: “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.”
As per the Section 7 (1) of the act, if any building is erected or re-erected without permission or in contravention of permission show cause notice, saying why not structure is alerted or demolished, is issued that is to be replied within 48 hours. The act says that if the reply is not given or is unsatisfactory, the authorities can ask the violators to demolish it with 5 days. If the violator fails to demolish it, the authorities can demolish it under Section 7(3). In case the violator says that he will demolish it after 5 days, authorities can seal it and then demolish it under Section 8(1) of BOCA.
It may be mentioned here that Advocate General of the State, Mohammad Ishaq Qadri, recently told the High Court that there are around 3000 violations of Srinagar Master Plan. The SMC has sealed over 45 structures in Srinagar’s Jawahar Nagar and Karan Nagar areas that had come in violation of Srinagar Master Plan.
The court has, however, ordered that the violators can 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”, the order reads.
The court said that it will monitor the progress of SMC so that is can’t go for pick and choose while acting against the violators of the SMP. “The SMC 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”, court observed.
The court said that it cannot turn its back on the wholesale violations resulting from illegal and unauthorized constructions which may have come up on account of misuse of the permission granted by the Municipal Corporation.
The court observed that 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. “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”, the court observed.
The court observed: “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.”
The court observed that during the course of proceedings, it has 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.
The Court directed formation of a committee headed by a reputed Government officer or retired Judge to look into the violations of the Srinagar Master Plan and report it to the court.”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”, the court observed.
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