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2015 DIGILAW 417 (JK)

Syed Iqbal Tahir Geelani v. State of J&K

2015-08-18

HASNAIN MASSODI, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : Hasnain Massodi, J. 1. World famous Dal Lake, spreading over an area of 50 Sq. Kilometers half a century back has shrunk to 13.5 Sq kilometers. We have thus lost a little less than 3/4th of Dal Lake during last few decades. Significant decrease in area of Dal Lake is mainly attributable to illegal constructions and encroachments because of such construction. A large area of Lake has been eaten up by ever expanding neighbourhoods and commercial buildings like hotels, guest houses and restaurants. Lackadaisical approach on part of law enforcing agencies has emboldened land mafia, tress-passers and encroachers to undertake earth filing of peripheries of Lake resulting in further decrease in its area. In the above background one of the directions issued by this court on 19.7.2002, when plight of Lake was brought to its notice through a letter treated as PIL, focused on construction activities, not only in the Lake area but within 200 meters from the centre of Foreshore road. The directions reads as under: i) "......We direct that within 200 meters from the centre of the foreshore road, wherever the road has been constructed no erection of buildings shall be allowed. We further direct that in these areas no changes will be make in the buildings as it exists today. We are informed that up to 1000 meters no erection of buildings is permitted at several places in these restricted area, in view of regulations, and therefore, wherever more area is prescribed by the development authorities in the master plan, forbearing erection of buildings no building activities whatsoever shall be permitted by the authorities concerned within such areas. (ii) It was further directed that "...nobody will be permitted to erect the building within the restricted or greenbelt area. It will be duty of the authorities to point out to the Tribunal exercising jurisdiction about the restriction imposed by law within the object and in view of the Supreme Court judgment the water bodies and greenbelts are required to be maintained as it is. If any permission is granted within the prohibited or restricted area that would be contrary to the decision of the Apex Court and principles of public trust. Therefore, no permission should be granted within the prohibited restricted area. We are sure that the Tribunal exercising power shall keep these aspects in mind. If any permission is granted within the prohibited or restricted area that would be contrary to the decision of the Apex Court and principles of public trust. Therefore, no permission should be granted within the prohibited restricted area. We are sure that the Tribunal exercising power shall keep these aspects in mind. It is the duty of all concern to see that in view of restriction imposed for erection of building near the water bodies to protect ecological balance and environment, no one is allowed to erect or to occupy the building. The respondents, having the jurisdiction over their respective areas shall report to this court about the action taken." 2. The Court, later to ensure that directions dated 19.7.2002 were followed in letter and spirit banned transportation of building material in the area except with the permission of the concerned authorities. 3. The directions were, mostly observed in breach. The orders passed from time to time did not evoke desired response from the authorities and in particular the officers of the Lakes and Water Ways Development Authority (LAWDA). The court was, therefore, left with no option but to take Dal Lake in its own control and declare it Custodia Legis. The relevant part of the order dated 23.3.2009 may be noticed: 2. We therefore, from this date taken these lakes in our custody on behalf of the people and, accordingly, direct the State Government to publish a notification to that effect for information of general public and all concerned. Consequentially, everyone associated with the management, preservation and development of these water bodies are also directly answerable to us. Since, these water bodies from today become custodial Legis, it is imperative on out part to know the exact area of these water bodies. 4. The above direction, enhances the responsibility taken upon itself by this Court, to take effective steps for preservation of Lake and adjoining areas. 5. The applications on hand bring to notice apathy and indifference on part of the officers and officials of LAWDA towards implementation of Court directions given from time to time for stopping constructions within Dal Lake and 200 meter area within its periphery. In MP No. 05/2015 constructions raised by respondent No. 8 with connivance of the official respondents is brought to the notice of the court. In MP No. 05/2015 constructions raised by respondent No. 8 with connivance of the official respondents is brought to the notice of the court. Report submitted by Court Commissioner in CMP No. 1409/2013 highlights constructional activity noticed by the Commissioner in prohibited area, without any response from LAWDA officials. Applicant in CMP No. 2896/2014 seeks demolition of constructions raised by one Ghulam Mohammad Chakoo in foreshore area of Dal Lake. 6. The respondents have not come up with the convincing response to the complaints received. Against the above backdrop we are of the view that prevention of construction activity in Dale Lake and within 200 meters from the edge of Foreshore road and other adjoining prohibited areas cannot be left exclusively to officers and officials of LAWDA. In the first place violation if any of court directions was in light of the order dated 23.3.2009, brought to the notice of the court so that necessary action was taken against the violators. Secondly the authorities ought to have swung into action on their own and submitted the action taken report. However, due to lack of commitment on part of concerned officers, such matters are left to be brought to the court by general public. It is a fact of common knowledge that such illegal activities evoke little or no response from the general public. A person espousing public cause apprehends a retaliatory action from the violator. 7. Against the above backdrop, we are of the view that two independent and impartial Court "Vigilance Commissioners" preferably with administration of justice and law enforcement background need to be appointed to keep vigil and regularly report to the Court construction activity if any undertaken in the Lake and adjoining areas so that action warranted is taken without any delay. 8. For the reasons discussed hereinabove we appoint S/Shri Mohammad Shafi Khan, retired District and Sessions Judge (former Principal District and Sessions Judge, Srinagar) and Mr. Abdul Hamid Bhat, former senior Superintendent of Police and Director Security Kashmir University as Court (Vigilance Commissioners). 9. The Commissioner shall inspect the Dal Lake area, as for as possible on daily basis and submit weekly report to the Registrar Judicial, High Court Wing Srinagar indicating therein, construction activity if any undertaken within Dal Lake and prohibited area, with necessary details like identity of the violator, nature of the construction and its dimensions etc. 10. 9. The Commissioner shall inspect the Dal Lake area, as for as possible on daily basis and submit weekly report to the Registrar Judicial, High Court Wing Srinagar indicating therein, construction activity if any undertaken within Dal Lake and prohibited area, with necessary details like identity of the violator, nature of the construction and its dimensions etc. 10. The Commissioners shall also report violation of any of the directions dated 19.7.2002, and passed thereafter like transportation of building material, earth filling, release of untreated effluents by any commercial establishment into Dal Lake. 11. The Registrar Judicial, on receipt of the report shall place it before the Bench having due regard to the gravity of the violation reported and urgency involved. 12. The Vice Chairman LAWDA shall provide the Commissioners reasonable office space within LAWDA Complex and services of at least one steno typist and orderly and also provide transport facilities like Motor Boat etc. so that they are in a position to discharge their duties without any difficulty or impediment. Each Commissioners shall be paid an amount of Rs. 30,000/- per month as honorarium, by Vice Chairman LAWDA. They shall in the first instance inspect alleged violation identified in the applications in hand and submit their report. Copy of the order be forwarded to all concerned.