S. No. 04
Advance List

         IN THE HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR

                          OWP (c) No. 2493/2019
                           CM No. 4819/2019

Hotel Heaven Canal
                                                         ............ Petitioner

                  Through: Mr. Shuja-ul-Haq Tantray, Advocate
                           Mr. Zia Shah, Advocate vice
                           Mr. A.H. Naik, Sr. Advocate, Amicus Curiae.

                                  Versus
State of J&K and others
                                                       .......... Respondents
                  Through: M/s N. H. Shah, Sr. AAG,
                           Mr. M. A. Chashoo, AAG,
                           Ms. Asifa Padroo, AAG.

CORAM:
            HON'BLE THE CHIEF JUSTICE
            HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
                                ORDER

24.02.2020

1. Petitioner, claiming to be registered partnership firm registered under Jammu & Kashmir Partnership Act vide Registration No. 3670 of 1976 dated 07.05.1976, is the owner of a building constructed over the land comprised under survey no. 396, Khewat no. 23, Khatta no. 159 in revenue estate Abi Nowpora, Tehsil Khanyar. The structure which has been constructed over the land is used by the petitioner as a hotel which was registered with the Jammu & Kashmir Tourism Department in the year 1980 and 2000.

OWP (c) No. 2493/2019 CM No. 4819/2019

2. The petitioner claims that the building was heavily damaged in the floods of 2014 and denied permission to repair the building. Additionally, an order dated 01.04.2019 stand issued by the J&K Pollution Control Board for immediate closure of the operation of the hotel followed by an order dated 14.05.2019 by the District Magistrate, Srinagar.

3. It is an admitted position that the Hotel stands sealed on 03.06.2019. The petitioner has received the communication dated 03.06.2019 from the Joint Director Tourism Kashmir and a notice dated 14.05.2019 from the Deputy Commissioner, Srinagar.

4. A challenge is laid by the petitioner to the aforesaid orders by way of instant writ petition.

5. When the writ petition came up for consideration before this Court on 23rd of July, 2019, keeping in view the nature of impugned notices and the location of the building of the petitioner, it was, inter alia, directed as under:

"...5. In our view, the issue raised by the petitioner with regard to the rehabilitation of hotels which are required to be closed down because of the polluted status as reported by the State Pollution Control Board is a matter which ought to be placed before the Committee of Experts appointed by us in PIL no.159/2002. Let a copy of this writ petition be furnished to Mr. Altaf Naik, who was appointed as an amicus curiae to assist the Committee..."

6. The order dated 01.04.2019 issued by the Jammu & Kashmir Pollution Control Board (page 17 of the paper book) shows that the petitioner-hotel was set up and put up in operation in violation of the norms as envisaged under Section 25/26 of the Water (Prevention and Control of Pollution) Act, 1974 and is in the immediate vicinity of the Dal Lake, 3 OWP (c) No. 2493/2019 CM No. 4819/2019 thereby adversely affecting upon the water quality of the lake. By this order, the Pollution Control Board had directed as follows:

".....Now, therefore, is exercise of powers vested in the Chairman, Jammu and Kashmir State Pollution Control Board under Section-33A of Water (Prevention and Control of Pollution) Act, 1974, immediate closure of M/s Hotel Heavan Canal Abi Nowpora, Srinagar is hereby ordered and in this behalf, the:-

i. Deputy Commissioner/District Magistrate Srinagar is directed to immediately close down the hotel M/s Hotel Heavan Canal Abi Nowpora, Srinagar.

ii. Director, Tourism Kashmir with the direction to immediately revoke the registration of hotel in question. iii. Chief Engineer, Electric f& Maintenance (PDD), Kashmir with the direction to snap electric supply to the hotel immediately. iv. Mohd. Shaban Chachoo Prop. M/s Hotel Heavan Canal Abi Nowpora, Srinagar is directed to cease the operation of the hotel forthwith.

Issued with the approval of Competent Authority."

7. Pursuant to the directions made by us, the Committee of Experts on Dal Lake (PIL No. 159/2002), has accorded a hearing to the petitioner in which the Vice Chairman, LAWDA, Member Secretary, Pollution Control Board and Director Tourism Kashmir had been requested to be present. The Committee of Experts has noticed that the Hotel of the petitioner was located on the Dal Lake without any sewage treatment facility and the only sewage facility was through a soakage pit and the septic tank, both of which were ineffective. The Committee of Experts has noticed that disposal of sewage from the hotel was directly flowing into the Dal Lake.

8. So far as further recommendations and actions are concerned, the Committee of Experts has recommended as follows:

 Since the hotel is located within Dal Lake area (within the Dal waters) and has been identified for being rehabilitated, the hotel has to be closed down and shifted. Govt of J&K should 4 OWP (c) No. 2493/2019 CM No. 4819/2019 formulate a policy for rehabilitation of such commercial units. The said Hotel should not be allowed to continue at the present location, even if they establish a modern sewage treatment plant and its effluent conform to the latest standards set by the pollution control board. Being located within the Dal waters, the danger of pollutants leaching into the Lake will always remain.

 The Govt. of J&K may most expeditiously devise a policy for rehabilitation of commercial units since it does not have one at present. The CoE advises that the Govt of J&K may examine the policy in this regard available under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act. 2013. The Policy may cover all cases that fall in the category of commercial units to avoid complaints in future and should be devised urgently.  The Petitioner is running a commercial unit that supports a number of families. In order to support Tourism, Srinagar requires good hotels. Hence, it is in the interest of the Govt and the people that whatever is possible is done for enabling such economic activities to continue but in a fair and open environment based on a transparent policy.  At the same time provision for treatment and waste should be mandatory and pollution of the Dal Lake should not be permitted. The SPCB, LAWDA and Tourism Deptt should maintain a constant vigil to identify polluters and take strong, strict and punitive action."

9. No relief can be granted to the petitioner in this writ petition.

10. It is submitted by Mr. Shuja-ul-Haq, learned counsel for the petitioner that the petitioner has no intention of running the Hotel at the location inasmuch as it adversely impacts the pollution content of the Dal Lake.

11. Learned counsel for the petitioner has contended that it is imperative that an immediate policy decision is taken by the Government of Union Territory of Jammu & Kashmir to enable the petitioner to continue with the trade and business to ensure availability of good hospitality to the tourists who visit the valley. It is further submitted that the closure of the petitioner's hotel adversely effects the livelihood not only of the petitioner but several other persons who were employed by the hotel. 5

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12. We have observed that the Committee of Experts has noticed not only the closure of petitioner's hotel but 17 other hotels have also been closed down.

13. We also find that the matter involves a multiple departmental consultation between the Tourism Department, Pollution Control Board, LAWDA and also the Revenue Department.

14. In view thereof, let the report of the Committee of Experts and this order be placed before the Chief Secretary of the Government of J&K for examining the matter for the optimum solution of all the issues arising. It shall be open for the Chief Secretary to appoint an appropriate Committee for looking into the matter and making its recommendations keeping in view the interest of the Union Territory, the residents as well as the land / business owners and the various persons dependent for livelihood on the related businesses.

15. The Registry shall send copy of this order to the Chief Secretary as directed above.

16. We are informed by Mr. Shuja-ul-Haq, learned counsel for the petitioner that in view of the orders passed by the respondents, the insurance companies are not insuring the property of the petitioner. We fail to see as to how the insurance cover is denied inasmuch as it is the property of the petitioner which has to be insured.

17. List on 23.03.2020.

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18. The Registry shall also provide copy of this order to learned counsel for the parties (DHIRAJ SINGH THAKUR) (GITA MITTAL) JUDGE CHIEF JUSTICE SRINAGAR 24.02.2020 TASADUQ SAB: