PIL on preservation, conservation of Dal Lake: HC asks govt to re-examine buffer zone areas of Lake within 6 weeks

Srinagar, Sept 19: Modifying and clarifying its previous orders in a Public Interest Litigation (PIL) related to preservation and conservation of Dal Lake, the High Court (HC) of Jammu & Kashmir and Ladakh directed the government to re-examine the area of the buffer zones around the Lake within six weeks.
The court directed the Advocate General, D.C Raina to take appropriate steps to get the area of the buffer zones around Dal Lake be re-examined by the State authorities.
The court was hearing a PIL on preservation and conservation of Dal Lake which was initiated in 2002 on the basis of a letter of one, Syed Iqbal Tahir Geelani, a student of 6th Semester LLB University of Kashmir, Srinagar.
The letter highlighted the miserable conditions of the various water bodies and lakes which at one time were the lifeline of the valley. Since 2002, the Court has passed various orders for the cleaning, development and upkeep of the lakes, especially the Dal.
A division bench of Chief Justice Pankaj Mithal and Justice Puneet Gupta directed the Advocate General to place the same on record within six weeks after providing a copy of the same to the amicus curiae who was directed to file his objection or suggestions to, if any.
The court passed the directions after Raina submitted that the government is ready and willing to re-examine the matter if the restrictions of 200 meters from the periphery of the lake is justified or the one as proposed in the Master Plan or alternatively what ought to be fair and reasonable.
The senior counsel Z.A Shah submitted that the placement of the restriction under the Master Plan may be in consultation with the experts, but the said restrictions have to be examined on the anvil of the fairness and reasonability so that neither the catchment area of the lake suffers with constructions, marring the ambience and at the same time the owners of the land are also not deprived of the proper use of their land.
The bench recorded that the Master Plan 2035 is open for revision and modification as per the advice of the experts i.e., the Town Planners, Environmentalists and the other stakeholders including the authorities responsible for the Smart City Project.
Perusing Master Plan 2035, the court passed a slew of directions and clarified that this order would supersede and be in modification of all earlier orders passed by it from the date, July 19, 2002 in the present proceedings.
The court pointed out that the directions passed by it from the date July 19, 2002 expressly prohibited new construction work or even carrying of building material in and around 200 meters from the periphery of Water Bodies or Dal lake.
It underscored that the only exception provided was for the purposes of grant of permission for the repairs and renovation of the existing buildings/structures falling within 200 Meters of the Water Bodies/ Dal Lake.
The court noted that the Master Plan 2035, subject to the outcome of the present proceedings, relaxes the 200 meter limit, by defining Buffer Zones of 20 to 100 meters from the periphery of the concerned water body, depending on the area concerned.
The manner of utilization of lands in the buffer zone is categorized as for the purposes of Parks and Gardens in the Master Plan 2035, it recorded.
The bench further recorded that the efforts made by it and by the various authorities involved in the preservation of Dal Lake cannot be put to naught.
“However, there is still need to ensure the preservation of this crown jewel and the prohibition contained in our order dated July 19, 2002 with respect to constructions within 200 meters of the periphery of Dal Lake shall continue to hold the field that is the buffer zones for Dal Lake in the Master Plan 2035 shall be read to be 200 meters,” the court said.
With respect to other water bodies identified in the Master Plan 2035, the bench, however, modified the order dated July, 19 2002 and clarified that the prohibition on construction shall stand modified to the extent that the prohibition shall apply in terms of the distances/buffer zones identified by the Master Plan itself.
It pointed out that the land use ascribed to the term “Parks and Gardens” ranges from, play fields and floricultures nurseries, to amusement parks and swimming pools.
The bench while appreciating that the same is aimed at preserving the natural beauty and ecology of the area while opening avenues of sustainable development, said that they feel that many of these uses would required construction of a permanent nature, “but developments and constructions in this ecologically sensitive area may negate any progress made in the past 20 years by the efforts of the authorities concerned and this Court.”
“Given the same, it is clarified that no new permanent construction shall be allowed in these Buffer Zones,” it directed.
The court directed the authorities to continue to consider grant of permission for the repairs and renovation of the existing permanent buildings or structures falling within such Buffer Zones in accordance with law.
The bench said that the meaning of the term repairs and renovations also need to be examined.
“Many buildings remained in a state of disrepair for long periods. Some have also borne the brunt of the devastating floods in 2014 and other disasters through the last 20 years,” it pointed out.
Clarifying that where plinths have been existing prior to the orders passed by it on July 19, 2002, the court directed that there shall be no barrier on any extent of repair, renovation or even reconstruction of such buildings to ensure that the structures are safe and in compliance with building bye-laws.
The court directed that fresh and new construction of permanent structures apart from the existing plinth would remain prohibited.
The bench further directed that development in the Buffer Zones of the concerned water body except the Dal area may be allowed in accordance with the Master Plan 2035, subject to the condition, that no fresh construction of a permanent nature (apart from repair, renovation or reconstruction of existing plinths as on July 19, 2002) shall be allowed in these areas.
The bench also directed that structures of a temporary nature, such as tents, kiosks, floating jetties, or other such structures that can be erected without harming the surrounding areas may be allowed for utilization of such lands.
This would only be apposite, keeping in mind that 20 years have elapsed since the restrictions were imposed, the bench said.
In the past 20 years, the court noted, many advancements have been made in terms of materials available and in terms of techniques to establish eco-friendly structures that may enhance the development of the area rather than cause harm to it.
The court noted that the Government of India, Ministry of Tourism (H&R) Division has issued “Guidelines For Project Approval and Classification of Tented Accommodation”.
It observed that various forest areas like Ranthambore, Kanha National Park and the like, today provide tented accommodations and wooden log structures of a temporary nature for lodging and resort purposes.
The bench further observed that such measures have not only brought a sustainable balance between livelihood tourism and ecological preservation to such areas but have also increased the prosperity of the inhabitants.
“The Master Plan 2035, we feel, has failed to take advantage of these advancements,” the bench said.
On the other hand, it underscored that the Master Plan 2035 envisages use of the Buffer Zones for amusement parks, aquariums and swimming pools – that not only require construction of a permanent nature would have a drastic impact on the beauty of the waterfront and the lakes, surroundings.
It pointed out that utilization of the buffer zones for swimming pools, amusement parks, theme parks and the like, would also envisage high footfalls and consequent impact on the area in terms of waste disposal, littering, pollution etc.
“Given the same, the authorities, while considering such applications should be mindful and impose appropriate conditions on such projects so that the activities do not hamper or interfere with the earlier orders passed by this Court with regard to the upkeep of the lakes/water bodies,” the bench directed.
On the other hand, the court recorded, proposals for residential projects, alternate projects, such as camping resorts having tents similar to those permitted and employed in forest areas, hotels or dwelling units consisting of temporary nature, temporary jetties for water sport centres, and other eco-friendly tourism initiatives, which can be established and achieved through existing permanent buildings and or temporary structures that are not harmful to the surroundings should be read as a part of permissible uses in the buffer zones.
The court noted that placing some of the houseboats on land adjacent to the Dal Lake, may also reduce the burden on the lake while preserving livelihoods and traditional tourism experience without need for any permanent constructions or structures and shall also be considered a part of permissible uses in the buffer zones.
In fact, the court said, such initiatives should be encouraged to ensure that the policies not only preserve but sustainably develop and improve the area and these shall be considered permissible use of the areas in the Buffer zones.
The bench directed that wherever, permissions, or sanctions, or change in user, may be required to operationalise such projects, the same shall also be considered in accordance with law by the concerned authorities and should not be rejected merely on the distance criterion.
The court directed that such applications should be utilized by the authorities that the persons interested in the projects are obligated to carry out landscaping, afforestation works, creation of local employment, lake cleaning and dredging works for the betterment and sustainable development of the area.
“Any permissions granted for utilizations of such land shall ensure compliance with the norms relating to STPs, sewage disposal, landscaping and afforestation with local trees and vegetation such as Chinaar, etc., that form the subject matter of earlier orders passed by this Court,” it directed.
The court noted that it has time and again ensured that the standing directions dated July, 19, 2002, are applied in a manner that is not onerous to the citizenry of the State.
The bench observed that it has been nearly 20 years since the directions were passed and “the court on each occasion has attempted to make sure that the directions remain attuned with the passage and demands of time.”
“Yet, we are faced with fresh application after another for the same relief,” it noted.
The court pointed out that on August, 04, 2022 it had called for suggestions for grant of permission and objections with regard to the guidelines or policy for the purposes of grant of permission for the repairs and renovation of the existing buildings or structures falling within 200 Meters of the Water Bodies/the Dal Lake.
It noted that while the issue has stood such, the Master Plan 2035 came to be notified.
As per the Master Plan 2035, the court noted, there is a need to redefine the boundaries of the water bodies.
Citing the Master Plan 2035, the bench pointed out, the statutory limit that has been fixed for construction activities to be carried out has been restricted to 100 meters, 50 meters and 20 meters depending upon the area/water body in question.
The court underscored that the permissible uses under the Category “Parks and Gardens” allows for a variety of land utilizations, many of which necessarily require permanent structures and construction.
“For instance, a zoo will necessarily require safety enclosures. Similarly, an aquarium would require permanent structures serviced by drainage pipes etc. So would be the case of an amusement park and/ or theme park, where safety requirements would necessitate the presence of permanent structures,” the bench said.
On the other hand, the bench said, residential dwelling units, hotels and resorts comprising log cabins or temporary structures such as modern tents would not only encourage tourism in the area but would also help in beautifying the surroundings.
“The manner, extent or nature of construction has not been specified. Further, car and scooter parking and even floriculture gardens to a large extent would require landscaping, levelling and deforestation of the natural vegetation,” it recorded.
The court pointed out that given the same the extent and manner in which the permissible uses have been defined in the Master Plan 2035 needs introspection.
Appreciating the work that has gone into the preparation of the Master Plan 2035, the court said that to balance the needs for sustainable development and economic prosperity of the area, few clarifications and guidelines are necessary to ensure that the provisions of the Master Plan are not abused.
The bench fixed the matter for hearing on September, 26, 2022.