Srinagar, Aug 04, KDC: In a landmark judgment aimed at curbing the rampant unplanned development in Srinagar city, the Jammu and Kashmir and Ladakh High Court has directed the Srinagar Development Authority (SDA) to demolish an illegally constructed building—“even if it entails demolition of the entire structure”—and submit a compliance report within two months.
The Division Bench comprising Justices Sanjeev Kumar and Sanjay Parihar, as per Srinagar-based news gathering agency Kashmir Dot Com, while dismissing a Letters Patent Appeal file by Mohammad Rafiq Sheikh and Bashir Ahmad Sheikh, sons of Habibullah Sheikh, both resident of Nowgam Srinagar, strongly condemned the brazen violations of the building regulations and the misuse of permissions by the appellants.
The court’s ruling, spanning 46 paragraphs, extensively dissected the Jammu and Kashmir Control of Building Operations Act, 1988 and its Regulations of 1998 and 2001, and made far-reaching observations that could shape the city’s planning and regulatory future.
“The Srinagar Development Authority is directed to carry out the demolition of the violation even if it entails demolition of the entire structure and submit a report to this Court within a period of two months,” the court ordered.
The appellants, who had secured three separate building permissions for three different units (including two hostels and one guest house), violated sanctioned plans by combining them into a single commercial structure, occupying setbacks, and exceeding the plinth area by over 200%, the court found. As against a permitted 9,159 sq ft per floor, the appellants constructed 19,900 sq ft per floor, resulting in a total excess construction of over 42,000 sq ft.
Despite multiple notices—dated July 20, July 27, and finally August 8, 2016—the appellants failed to comply. The final notice, published in a leading daily, was issued under Section 7 of the 1988 Act after prior show-cause notices had gone unheeded.
The appellants, who had approached the Special Tribunal, admitted the violations and sought regularization under the garb of a “revised plan.” The Tribunal partly allowed their plea and ordered compounding of a portion of the violation, terming it “minor.” The appellants deposited compounding fees accordingly. However, the SDA challenged the Tribunal’s decision before the High Court in a writ petition.
The High Court overruled the Tribunal’s decision and reiterated that violations involving setbacks were non-compoundable, regardless of whether the 1998 or 2001 Regulations applied.
“Whether the offending structure is governed by the Regulations of 1998 or the Revised Regulations of 2001, the construction raised on the prescribed setbacks—whether it is front, rear or side—is not an offence of minor nature and, therefore, not compoundable,” the bench held.
On the issue of “deemed sanction,” the court clarified that submitting a revised building plan post-construction does not entitle the violator to seek regularisation.
“There is no warrant for making an application seeking building permission on a revised plan if the construction proposed in the plan has already been accomplished,” the bench wrote, adding, “we could not find any provision for submitting the revised plan to effect alteration and changes in the ongoing structure being raised as per the sanctioned plan.”
The bench was scathing in its assessment of the appellants’ conduct, accusing them of willful violations and manipulation.
“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 applied for building permission for raising the construction of a hotel, and, therefore, devised a plan to hoodwink the authorities,” the court noted.
Further, the court did not rule out “active connivance” of SDA officials, observing:
“Not even for a while are we ruling out the active connivance of the officers/officials of the SDA. They permitted the appellants to indulge in large-scale violations.”
While senior counsel for the appellants, Adv Haqani, made an emotional plea urging the court to show compassion as his clients had invested heavily, the court was unsympathetic.
“He who seeks equity must do equity. 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 rule of law,” the bench responded.
Significantly, the court extended its concern beyond the individual case and called upon the authorities to fix responsibility on SDA officers under whose watch such gross violations occurred.
“A fresh look at the Regulations to make provision for penalizing the officers/officials responsible for allowing the development/construction raised in flagrant violation of building permission would be worthwhile,” the court said.
The bench emphasized that this case should serve as a starting point for a broader clampdown on unregulated growth.
“The argument that there are similar structures with much larger violations still existing will not dissuade us from ensuring that the beginning is made today and now.”
In a powerful warning, the court linked rampant violations and encroachments to the 2014 floods and the deteriorating condition of Srinagar’s urban environment.
“It is said that the encroachments and mushroom constructions unauthorizedly raised on both sides of River Jehlum were some of the factors which led to the devastating floods of 2014,” the judgment noted.
It urged authorities to awaken from their “slumber” and reminded them of Srinagar’s significance:
“Lacs of tourists and pilgrims throng the Valley of Kashmir every year and the first stop is 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.”
Before concluding, the court directed that a copy of the judgment be forwarded to the Chief Secretary of the UT of Jammu & Kashmir for necessary consideration.
“Registry to forward a copy of this judgment to the Chief Secretary of the UT of J&K,” the final paragraph reads. (KDC)