‘Clear through speaking order permission on 50-bedded AYUSH hospital at Harwan’

HC to LAWDA
‘Clear through speaking order permission on 50-bedded AYUSH hospital at Harwan’
High court of Jammu and Kashmir, Srinagar branch. [Mubashir Khan for Greater Kashmir]

Jammu and Kashmir High court has directed Lakes and Waterways Development Authority (LAWDA) to reconsider application by Director Indian Systems of Medicines (ISM) on construction of 50 bedded AYUSh hospital at Harwan here.

The direction came after a division bench of Chief Justice Pankaj Mithal and Justice Vinod Chatterji Koul concluded that that AYUSH Hospital has been constructed on the basis of "deemed permission‟ pursuant to the application dated 20th September 2013 that ISM Department made to LAWDA.

The court concluded it as "deemed permission" by observing that no action either accepting or rejecting of the application was taken and communicated to the department in time.

"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," the Bench said.

The Bench however left it open for the LAWDA to take appropriate action either under Section 7 or Section 8 of Control of Building Operation Act in accordance with law.

The Court observed that the Act specifically provides vide Section 7 for the demolition of a building which is erected without the permission and at the same time vide Section 8, it provides for the power to seal unauthorized 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 unauthorized construction and in sealing the same".

The bench said it is simply on the basis of the order of the High Court dated 14th October 2015 that the construction of AYUSH Hospital was sealed as it was treated to be unauthorized as observed by the Court.

Pointing out that the ISM department had applied for the permission through an application dated 20 September 2013 and the application was rejected on 11 January 2016, the court said the same seemingly remained pending with LAWDA for almost two years and three months with no action except for issuing a direction to the Department not to undertake construction.

The Court said as no orders were passed on the application on merits, it attracted Regulation 7 (iii) of "deemed permission" as no infirmity or short coming was pointed out in the application.

"Except for the said report, there is no other material to hold that the same was constructed illegally without any sanction from the LAWDA. There is no allegation that the constructions are in violation of the Master Plan or any order of the court."

Citing a letter of the Chief Town Planner dated 24th January 2020, the court said: "In view of the 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 construction are as per the Master Plan norms".

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