Srinagar: The J&K High Court on Thursday directed the Lakes and Waterways Development Authority (LAWDA) to consider an application for grant of permission to the Health and Medical Education Department for construction of an ‘already sanctioned’ 50-bed Ayush Hospital in Harwan area, in proximity of the Dal Lake.
The court was hearing an application from the Director, Indian System of Medicine (ISM), who had sought modification of the court order dated 14 October, 2015, in order to complete the interior construction of the hospital. The application stated that the court back then had only considered the Court Vigilance Commissioner’s report and had ‘concluded that the construction of the hospital was unauthorised.’
“Except for the said report, there is no other material to hold that the same was constructed illegally without any sanction from LAWDA. There is no allegation that the constructions are in violation of the Master Plan or any order of the court,” a division bench of Chief Justice Pankaj Mithal and Justice Vinod Chatterji Koul said on Thursday.
The court also gave reference to the letter of the Chief Town Planner dated 24th January 2020 which stated ‘that the two-storied 50 bedded AYUSH Hospital stands erected on a plot measuring 81600 Sft with plinth area of 13864 Sft, ground coverage of 17% FAR 0.34 & 36 feet and 9 inches with setbacks as mentioned below which are as per Master Plan norms except rear setback which shall be 15 feet minimum instead of 11 feet 9 inches.”
“It further states that the car parking is sufficient,” the court pointed out.
“In view of the above letter of the Chief Town Planner, instead of leaving adequate rear setback of 15 feet, the AYUSH Hospital has been constructed by leaving only 11 feet 9 inches as the rear setback, otherwise there is no illegality; rather, the constructions are as per the Master Plan norms,” the court recorded.
The bench noted that the entire facts and circumstances of the case as well as the pleadings on record compel the court to come to the conclusion that the 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 unauthorised without considering the factum of “deemed permission” and in violation of principles of natural justice.
“There appears to be no independent application of mind by the LAWDA either to hold that the constructions to be illegal or without permission,” the court recorded.
The court said that the Control of Building Operation Act, 1988 specifically provides vide Section 7 for the demolition of a building which has been erected without the permission referred to in Section 4 of the Act or in contravention of any condition of construction by adopting the procedure prescribed therein.
“At the same time, vide Section 8, it provides for the power to seal unauthorised construction. The LAWDA has not adopted either the procedure prescribed under Section 7 or Section 8 of the said Act before treating AYUSH Hospital to be unauthorised construction and in sealing the same,” bench noted.
The court said it is simply on the basis of the order of the High Court dated 14th October 2015 that the AYUSH Hospital has been sealed.
“In the aforesaid facts and circumstances, 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,” the court directed.