The National Green Tribunal (NGT) has declared Shimla’s Draft Development Plan 2041 illegal being in conflict with its earlier judgment dated November 16, 2017.
“Any action taken in violation of the said judgment cannot be validated by the said plan and will remain illegal. We declare accordingly,” ordered the NGT.
The question before the Tribunal was whether it was open to Himachal Pradesh (HP) to issue a ‘development plan’ in violation of the decree of the Tribunal. The further issue was whether such action could be justified on the ground that a copy of the plan was filed in some matter before the high court or that according to the state its action was justified.
The contention of HP government that the judgment of the NGT could be ignored by the state in exercise of its legislative power was dismissed.
“After due consideration of the issue, we are of the view that stand of the State (HP) cannot be upheld. Once the Tribunal has adjudicated upon the matter, no further question remains for going into the merits. View already taken is final unless the same is interfered with by a legal forum,” said the bench headed by Chairperson of NGT, Justice Adarsh Kumar Goel (retd), in the judgment dated October 14.
“There is no jurisdiction with the State to annul or ignore the order of the Tribunal. Any other view will negate the rule of law and defeat the purpose of setting up this Tribunal. State’s view is not final in view of overriding provisions of NGT Act by virtue of express provision under section 33 (of the NGT Act),” added the judgment.
In the judgment dated November 16, 2017, the NGT had said, “We hereby prohibit new construction of any kind, i.e. residential, institutional and commercial to be permitted henceforth in any part of the Core and Green/Forest area (of Shimla) as defined under the various notifications issued under the Interim Development Plan as well, by the State Government.”
It added, “Beyond the Core, Green/Forest area and the areas falling under the authorities of the Shimla Planning Area, the construction may be permitted strictly in accordance with the provisions of the TCP (Town and Country Planning) Act, Development Plan and the Municipal laws in force. Even in these areas, construction will not be permitted beyond two storeys plus attic floor.” However, for hospitals, schools and offices of essential services, the plans for approval or obtaining NOC for more than two floors has to be submitted to the concerned authorities having jurisdiction over the area in question. It would be sanctioned only after the same have been approved and adequate precautionary and preventive measures have been provided by the special committee constituted under the 2017 judgement along with the Supervisory Committee.
For renovations of the old buildings in Core or Green/Forest areas, the 2017 judgment had said, “Wherever the old residential structures exist in the Core area or the Green/Forest area which are found to be unfit for human habitation and are in a seriously dilapidated condition, the Implementation.
Committee constituted under this judgement may permit construction/reconstruction of the building but strictly within the legally permissible structural limits of the old building and for the same/permissible legal use.”
It debarred any regularisation of unauthorized constructions within the Core area and Green/Forest areas. Also, the unauthorized constructions in areas beyond Core/Green/Forest areas would not be regularised or compounded. However, if the owners have submitted their plan and construction work with deviation had been completed prior to the 2017 judgment they could be regularised after payment of environmental compensation at the rate of Rs 5,000 per sq feet in the case of residential buildings and Rs 10,000 per sq feet in case of commercial or residential-cum-commercial buildings.