No construction activities are carried out without the leave of the Court at Gulmarg: DB

A Division Bench of Jammu & Kashmir High Court Comprising Chief Justice Pankaj Mithal and Justice Vinod Chatterji Koul while hearing a Public Interest Litigation concerning the illegal and unauthorised constructions being raised in Gulmarg and Tangmarg in violation of the Master Plan, directed earlier directions of the Court stopping of construction activities at Gulmarg/ Tangmarg, shall remain in operation and further directed that if any person is found violating the same and continues with the construction activities his/her property shall be sealed forthwith and that no building or construction material shall be allowed to be transported in the area.

DB further ordered that it would be obligatory upon the Deputy Commissioner, Baramulla, SSP, Baramulla and the Gulmarg Development Authority to ensure that no construction activities are carried out without the leave of the Court. The Court however do not intend to usurp or take over the functions of the Development Authority or the BOCA and, as such, leaves it open for the authorities to entertain applications for the repairs and constructions of the buildings in accordance with the Master Plan and the By-laws but the sanction, if any, shall not be implemented without taking prior approval of the Court.

When the PIL came-up for hearing, Division Bench observed that the litigation is pending since 2012 and from time to time various directions have been issued and at the same time the Court has observed that since this court is Custodia Legis, no other court or tribunal shall pass any order dealing with the subject matter concerning the PIL. It is pertinent to mention that one more writ petition being OWP No.824/2011 titled Firdous Ahmad Yatoo v. State of Jammu & Kashmir was filed with similar prayers as made in the present petition and the same was disposed of by this Court vide order dated 19.07.2011.

DB further observed that a plain reading of the above order would reveal that the said writ petition was also regarding stopaage of illegal constructions in the tourist places of Gulmarg and Tangmarg and removal of such unauthorized constructions. The Court in disposing of the petition directed the respondents to ensure that any constructions made in the above two tourist places are in conformity with the Master Plan and does not in any way cause any degradation to the fragile ecology and environment of the place and that no construction in future shall be permitted in violation of the Master Plan. It was also observed that if the respondents come across any illegal construction made in violation of the Master Plan, the authorities concerned shall take appropriate legal action against such persons after giving due notice and opportunity to them before passing appropriate final orders in the matter. The respondent No.9 was directed to ensure that the ecology of the notified forest land is not disturbed and encroached upon under any circumstances.

DB Further observed that in this PIL also, we are only called upon to ensure that no illegal constructions are raised in the tourist places of Gulmarg and Tangmag and that the ecology and environment of the said areas is duly preserved and that if any unauthorised constructions are in existence they be removed in accordance with law. The Court appointed Amicus Curiae as well as Court Commissioners for submitting inspection reports and Committees of Experts. Sufficient material in the shape of the reports of the Commissioners and the Committees as well as of the Amicus Curiae are already on record and, the matter can easily and finally be decided on the basis of such material already on record.DB further observed that we do not feel it necessary to widen the scope of this PIL as it will open a Pandora's box as has been observed by the Coordinate Bench of this Court while disposing of the earlier OWP No.824/2011 in its order dated 19.07.2011.

Therefore, in order to confine ourselves to the reliefs claimed in the PIL, DB directed M. A. Chashoo, AAG, appearing for the Gulmarg Development Authority, Tourism Department and BOCA and Mr. B. A. Dar, Sr. AAG, appearing for the Revenue and Forest Departments to file fresh affidavits of the Chief Executive Officer, Gulmarg Development Authority, Chairman, BOCA, Director, Tourism, Divisional Commissioner, Revenue, and Chief Conservator of Forests, clearing indicating the position of all existing buildings in the area, the details of the buildings/ structures which are unauthorized, the legal action if any taken against them and all other ancillary details on the subject, within a period of six weeks.

DB further observed that since we are confining the matter to the reliefs claimed in the writ petition and are examining the matter de novo, we do not deem it necessary for the time being to have the assistance of any amicus curiae or of any commissioner or the committee. Accordingly, any amicus curiae appointed earlier stands relieved of his office and so are the commissioner(s), if any appointed from time to time. The Committee(s), if any, shall also stand dissolved. It is made clear that on filing of the affidavits as directed above, if necessary, the Court may consider for the appointment of amicus curiae, commissioner or a committee afresh subsequently, DB ordered.

DB further directed that the earlier directions of the Court stopping of construction activities at Gulmarg/ Tangmarg, shall remain in operation and if any person is found violating the same and continues with the construction activities his/her property shall be sealed forthwith and that no building or construction material shall be allowed to be transported in the area. It would be obligatory upon the Deputy Commissioner, Baramulla, SSP, Baramulla and the Gulmarg Development Authority to ensure that no construction activities are carried out without the leave of the Court. The Court however do not intend to usurp or take over the functions of the Development Authority or the BOCA and, as such, leaves it open for the authorities to entertain applications for the repairs and constructions of the buildings in accordance with the Master Plan and the By-laws but the sanction, if any, shall not be implemented without taking prior approval of the Court.