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Judgment
Some very critical aspects regarding the environmental issues relating to the developments in Pahalgam are the subject matter of consideration in this writ petition. We examine the same in seritum hereafter:
Construction Activity:
This is concerned with the issue regarding the working of applications for permissions and repairs and renovations in terms of the order dated 24th
December, 2010 and Section 4 of the Jammu & Kashmir Control of Building Operations Regulations 1998.
On this aspect detailed directions were made on 29th August, 2018 as well as on 9th October, 2018 with regard to the authorities adopting an Online Building Permission System.
A status report was required to be filed before 15th November, 2018. Unfotunately, this has not been done. Mr B. A. Dar, learned Sr AAG, submits that on account of the elections of the Urban Local Bodies and Panchayat, the authorities were not in a position to do so as they were all pre-occupied with the several functions with regard thereto and further time is sought.
Let the status report be filed before the next date of hearing.
Solid Waste Management:
In this regard on 9th October, 2018, we had taken note of para-7 of the status report dated 5th October, 2018 filed by the State Government to the effect that the Solid Waste Management Byelaws have been drafted and the same have been referred to the Law Department for approval.
This very issue is the subject matter of consideration at the Jammu Wing of this Court in PIL No.42 of 2014 entitled Rajinder Singh v. State of J&K and others. In this case, on 19th November, 2018, the Division Bench has made a detailed reference to the provisions of the Environmental (Protection) Act, 1986, and the Municipal Solid Wastes (Management and Handling) Rules, 2000, which was superseded by the Solid Waste Management Rules, 2016, notified on 8th April, 2016 by the Government of India.
Rule 3(1)(30) of the Solid Waste Management Rules,2016, defines the 'local body' while Rule 15 of the said rules, mandates the local authorities with regard to framing bye-laws and prescribing criteria under Rule 15(e)(f), (zf) and (zg). These include bye-laws for framing time to time user fee and collection fee from waste generators; criteria for levying of spot fine for persons littering or failing to comply with the provisions of the rules and bye-laws; creation of public awareness; minimizing generation of waste; reusing waste to the extent possible as well as adoption of the practice of segregation of waste into bio- degradable and non-biodegradable, sanitary waste and domestic hazardous wastes at source, amongst other important areas.
By the order dated 19th November, 2018, the Division Bench has noted that so far as Jammu and Kashmir is concerned, it has almost 78 local urban bodies while the number of local bodies in the rural areas would be perhaps more. Given the size of the State and disparity in the availability of resources, there may not be uniformity in the consideration or the prescription by the different local bodies in the State.
In view of the expertise of the State Government to frame Model Solid Waste Management Bye-Laws which could be considered by the local bodies, a direction has been made by the order dated 19th November, 2018 to the State Government to frame Model Solid Waste Management Bye-Laws within six weeks of the passing of the order and circulate the same for consideration and adoption (subject to such local adaptations as may be necessary) within four weeks thereafter. Status reports in this regard are required to be sent to the Chief Secretary who would cause compliance reports to be filed in a tabulation form in PIL No.42 of 2014.
These aforesaid directions cover the requirement of framing the Bye-Laws in the present matter as well. The respondents are directed to ensure compliance with the directions and file status report in this regard about the action taken within three weeks from today.
List on 19th December, 2918.
On 9th October, 2018, this Court was informed by Mr Z. A. Shah, learned senior counsel, that the private hotelier had deposited all charges necessary with the Forest Department, in order to make available the pine saplings for plantation.
Mr Z. A. Shah, learned senior counsel, who appears for the Grand Mumtaz Resorts,Pahalgam, has handedover a copy of letter dated 26th November, 2018, addressed to the Chief Executive Officer, Pahalgam Development Authority, Pahalgam, with copy endorsed to the General Manager, Grand Mumtaz Resorts,Pahalgam, to the effect that the Pahalgam Development Authority has received conifer saplings for plantation in and around Pahalgam from the Forest Department through Khilafwarzi Squad of the Authority. These saplings stood issued to the Incharge of Lavender Park for necessary stock and plantation.
In view of the above, let a status report enclosing photographs of the plantation be filed with the Pahalgam Development Authority within three weeks from today.
Request for adjournment is made to make submissions with regard to order dated 23rd September, 2011, appointing the Committee and consideration of its report with regard to the destruction of the trees.
Parties shall give written submissions running into not more than five pages with list of dates and propositions and relevant court orders.
It is submitted by learned counsel for the applicant that vide an order bearing PDA order No.25/BOCA of 2009 dated 06.04.2009, the applicant was granted building permission. However, this Court's order dated 24.12.2010 prohibited undertaking of any construction in the Pahalgam area till such time as the Master Plan is finalized.
It is contended that this application has been necessitated for the reason that the Master Plan stands finalized and that the applicant is merely seeking the permission to raise the construction in terms of the permission earlied granted. It is the contention of the applicant that the permission granted would subsist even under the new Master Plan.
It is submitted by Mr M. A. Chashoo, learned AAG, that the objections are ready and he shall file the same during the course of the day. Let the same be filed with copy in advance to learned counsel for the applicant.
A submission is made on behalf of the applicant that in case the respondents have any objection or complain of any deviation on account of the new Master Plan coming into force, the applicant shall ensure that he does the needful and rectifies any objection or deviation which is pointed out by the respondents.
In this background, the respondents shall ensure that full details of their objections or deviations regarding the construction of the applicant are made known to the applicant who may take steps to remove the same at an earliest and notify the respondents of the same.
On receipt of the notification regading removal of the defects/ objections, the respondents shall undertake inspection of the property of the applicant and pass orders afresh within four weeks of the receipt of the notice of removal of the defects/ objections.
List as above.
Learned counsel for the petitioner submits that an application for building permission is pending with the respondents. However, Mr. M. A. Chashoo, learned AAG, submits that no copy of the application is available with the Authority.
Let a copy of the application be furnished during the course of the day, which shall be scrutinized and view taken within three weeks.
List as above.
Time is sought by Mr B. A. Dar, learned AAG, for filing objections. Let the same be filed on or before the next date of hearing.
Learned counsel for the applicant shall provide a copy of the application to Mr Dar within two days.
List as above.
Let a copy of this order be given to learned counsel for the parties under the seal and signature of the Bench Secretary.