High Court expresses dismay over unauthorised constructions in Srinagar

Srinagar, Aug : The High Court of J&K and Ladakh has expressed its dismay over the authorities’ inaction against coming up unauthorised structures in Srinagar city even as it called for action against the delinquents under whose nose the violations took place.

“We are aware that there are several such buildings raised in the city under the nose of the authorities responsible for planned development of the City and as a result whereof the Srinagar City has lost its charm and beauty. Every day we witness traffic jams, encroachments on public roads, lanes and bye-lanes as also on the banks of river Jehlum,” a division bench comprising Justice Sanjeev Kumar and Justice Sanjay Parihar said in its order, while upholding its single bench decision wherein special tribunal’s order compounding a construction violation in Srinagar City was set aside.

“It is said that the encroachments and mushroom unauthorised constructions raised on both sides of River Jehlum were some of the factors which led to the devastating floods of 2014,” the bench added.

The Court observed that it was high time that the control of building operations authorities wake - up from their slumber and take up their responsibility seriously, lest City of Srinagar and many others would be lost in the chaos.

“It needs no emphasis that lakhs of tourists and pilgrims throng the Valley of Kashmir every year and the first stop is in the City of Srinagar. If this is how they are presenting Srinagar City to the outside tourists and pilgrims, we would be doing great disservice to the Tourism and Hospitality Sector besides making the life of its citizens miserable by chaotic traffic jams, pollution and haphazard growth of the city”.

The bench observed that it is the right time the authorities at the helm of affairs to fix the responsibilities of the officers under whose nose the violations take place. “A fresh look at the Regulations to make provision for penalising the Officers or officials responsible for allowing the development or construction raised in flagrant violation of building permission, would be worthwhile,” it said.

The bench made these observations while dismissing an appeal filed by two residents of Srinagar and upheld the demolition of an un-authorised multi-storey building in the City outskirts.

In the appeal, Muhammad Rafiq Sheikh and Bashir Ahmad Sheikh, had challenged the Single judge’s verdict quashing a J&K Special Tribunal’s order that had compounded the building violations.

While three separate building permissions issued in favour of the appellants and their father by the Srinagar Development Authority (SDA) for constructing independent hostel and guest house structures on their private land, contrary to the sanctioned plans, the appellants combined all three buildings into a single massive commercial complex, blatantly ignoring the mandatory 30-feet setbacks between structures.

The unauthorised construction was carried out during the 2016 unrest, despite repeated stop-work notices and even police intervention. The SDA had eventually issued a demolition notice on August 8, 2016.

The appellants managed to secure an interim stay from the J&K Special Tribunal, which later compounded the violations, directing payment of a compounding fee of Rs 21.48 lakh for over 42,000 sq. ft. of unauthorised construction.

The High Court however observed that such major violations, particularly the construction on prescribed setbacks, were non-compoundable under both the 1998 and 2001 Building Operation Regulations. The court further noted that the Tribunal had no authority to compound the offence in absence of any formal application from the appellants seeking such relief.

The bench held that the appellants had tactically applied for three different building permissions to avoid the regulatory restrictions associated with hotel constructions and then merged the structures, resulting in a built-up area more than double the approved limit.

The bench underscored that a person guilty of flagrant violation of rule of law cannot approach the Court of law and complain that he is not being fairly treated by the State responsible for ensuring the implementation of the rule of law.

“The appellants, out of design, applied for three different permissions. Two were with respect to construction of Hostels and one was in respect of a Guest House”.

The building permissions, it said, were granted by the Competent Authority indicating clearly the setbacks to be kept on all the sides.

“Two buildings were required to keep a gap of 30 feet in between, but without going as per the plan and taking the benefit of disturbances during the year 2016, the appellants took law into their hands and raised a single unit, probably with a view to run a hotel. They knew that different considerations would prevail if they apply for building permission for raising the construction of a hotel, and, therefore, devised a plan to hoodwink the authorities,” the bench said.

Seeking its compliance report,the court directed the SDA to proceed with the demolition of the illegal structure, even if it requires razing the entire complex, within two months.