Excelsior Correspondent
Srinagar, May 20: High Court said whether the construction of 50 bedded AYUSH Hospital within the jurisdiction of Dal Lake has come up in accordance with sanctions, is required to be considered afresh by the court and thereafter the Lakes and Waterways Development Authority (LAWDA) to take appropriate action in accordance with law.
HC was hearing an application filed on behalf of the Director, Indian Systems of Medicines, J&K seeking modification of the order dated 14th October 2015 passed by this court so that the department may be in a position to complete the construction of the 50 bedded AYUSH Hospital at Harwan Srinagar which is almost complete except for the interiors.
“We are of the opinion that the matter as to whether the application of the department for grant of permission stands granted and the construction of the AYUSH Hospital is in accordance with the sanctioned map, if any, requires to be considered afresh by a speaking order, uninfluenced by any finding or observation recorded by the Court, whereupon it will be open for the LAWDA to take appropriate action either under Section 7 or Section 8 of the Act in accordance with law”, Division Bench of Chief Justice Pankaj Mithal and Justice V C Koul said.
The department for the construction of the hospital submitted the Detailed Project Report (DPR) which was duly sanctioned and approved at the construction cost of Rs. 677.43 lakh. Accordingly, the department applied to the LAWDA vide application in the 2013 for granting permission for the construction of 50 bed AYUSH Hospital.
But the LAWDA failed to decide the application and communicate any order thereof and the hospital building was constructed which is almost complete except the interiors, treating the permission to have been granted.
In the meantime, an order of the court in October 2015 came to be passed holding the construction of the AYUSH Hospital as unauthorized with general directions to attach/seal all structures/buildings raised in violation of Master Plan, directions of the court or beyond the permission, if any, granted by the BOCA (LAWDA). Accordingly, AYUSH Hospital has also been sealed.
Counsel representing the AYUSH Hospital submitted that the hospital had already been completed on the basis of the “deemed permission” and therefore its sealing on the basis of the order of October 2015 is unjustified, more particularly when the order has been passed behind the back of the department.
These submissions have been contested by the counsel representing LAWDA, relying upon the objections filed by the LAWDA and submitted that the hospital authorities were informed by the LAWDA in September 2013 not to undertake any construction as they have not obtained “No Objection Certificate” from the various departments.
Court said there is no dispute to the fact that the AYUSH Hospital has been constructed on the land of the department which was transferred to it on behalf of the Government by the Revenue Department as per the order dated 15th December 2010 and the department had applied for permission to raise construction of the hospital vide application on September 2013. The application is stated to have been rejected on 11th January 2016 meaning thereby that it remained pending with LAWDA for almost two years and three months with no action except for issuing a direction to the Department not to undertake construction, however no orders were passed on the application on merits.
“The entire facts and circumstances of the case as well as the pleadings on record compels us to come to a conclusion that AYUSH Hospital has been constructed on the basis of “deemed permission? pursuant to the application dated 20th September 2013 when no action either accepting or rejecting the same was taken and communicated to the department in time and the same has been sealed only on the basis of the order of this High Court dated 14th October 2015 wherein the constructions have been held to be unauthorized without considering the factum of “deemed permission” and in violation of principles of natural justice”, DB recorded.
Court said the LAWDA has not adopted either the procedure prescribed under Section 7 or Section 8 of the BOCA Act before treating AYUSH Hospital to be unauthorized construction and in sealing the same and It is simply on the basis of the order of the High Court the AYUSH Hospital has been sealed treating it to be unauthorized.
The application of the petitioner-Hospital, court added, for grant of permission to construct which is deemed to have been granted has also been rejected on 11th January 2016 subsequent to the order of the High Court probably in the light of the observations of the court.
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