शिमला। नेशनल ग्रीन ट्रिब्यूनल ने जयराम सरकार की ओर से राजधानी के कोर, ग्रीन व अन्य इलाकों में बहुमंजिला बनाने का प्रावधान वाले शिमला डवलपमेंट प्लान -2041 को रदद कर दिया है। यह जयराम सरकार गैर कानूनी कारगुजारियों का एक और भंडाफोड हैं। चुनावों से ऐन पहले एनजीटी की ओर से इस तरह का फैसला जयराम सरकार व उनके शहरी व विकास मंत्री सुरेश भारदवाज के लिए चुनावों के लिहाज से बडा झटका हैं। साथ ही इस फैसले ने एक बार यह भी साबित कर दिया है कि जयराम सरकार ने पिछले पौने सालों में किस तरह कानूनों का ताक पर रख कर काम किए ।
ट्रिब्यूनल के अध्यक्ष न्यायमूर्ति आदर्श कुमार गोयल, न्यायकि सदस्य न्यायमूर्ति सुधीरअग्रवाल, विशेषज्ञ सदस्य ए सेंथिल वेल और विशेषज्ञ सदस्य अफरोज अहमद की पीठ ने अपने 20 पन्नों के फैसले में कहा कि यह प्लान ट्रिब्यूनल की 16 नवंबर 2017 की जजमेंट के विपरीत है और यह अवैध हैं। इसलिए इसे प्रभावी नहीं माना जा सकता । पीठ ने कहा कि उक्त जजमेंट का उल्लंघन कर की गई किसी भी कार्रवाई को उक्त प्लान के मार्फत को वैधता नहीं नहीं दी जा सकती और यह गैर कानूनी ही रहेगा।
पीठ ने यह फैसला योगेंद्र मोहन सेनगुप्त की याचिका पर दिया है। उन्होंने इस प्लान के खिलाफ एनजीटी में याचिका दायर की थी।
याद रहे शहरी विकास मंंत्री सुरेश भारदवाज ने जब इस प्लान को जारी किया था तो भी यह सवाल उठाया गया था कि यह गैर कानूनी है लेकिन उन्होंने इस ओर तब कान तक नहीं धरा था। तब यह समझ बनी थी कि भाजपा इस मसले को चुनावी लाभ के लिए भुनाने जा रही है। लेकिन अब यह सपना खत्म हो गया है।
इस मामले में जयराम सरकार ने यह स्टैंड लिया था-:
State’s stand
4. In response to the above, the State of Himachal Pradesh has filed a counter affidavit dated 20.07.2022 by submitting that judgement of this Tribunal could be ignored by the State in exercise of its legislative power.
A Writ Petition was filed before the Himachal Pradesh High Court being CWP No. 4595 of 2011, Rajeev Verma v. State of Himachal Pradesh &Ors., on which order dated 21.09.2021 was passed taking on record the draft plan which is a valid ground to ignore the order of this Tribunal.
It is further stated that the draft development plan is necessary notwithstanding the view of this Tribunal. The plan is as per Guidelines of Ministry of Urban Development, Government of India and is necessary to promote development. The recommendations of Expert Committee appointed by this Tribunal have been duly addressed while preparing the draft development plan.
In the process, the State has considered Disaster Risk Management, suitability for the hill environment, seismic safety analysis and retrofitting of life-line buildings, capacity of Shimla Fire Services, city level disaster preparedness planning, mobility and water supply system. The counter affidavit also refers to following judgements of the Hon’ble Supreme Court:
i. Judgment dated 01.06.2022 in Civil Appeal no. (Diary) no. 16486 of 2022 titled as “State of Andhra Pradesh Raghu
Ramakrishna Raju Kanumuru (M.P) that the Tribunal could not pass orders in conflict with the orders of the High Court
ii. Karnataka Bank Ltd. vs State Of A.P. &Ors [(2008) 2 SCC 254]in para 19 that there is presumption in favour of validity of astatute
iii. Madhya Pradesh vs. Rakesh Kohl’ and another (2012) 6 SCC 312 that law is not to be declared bad lightly
iv. Govt. of AP vs P Laxmi Devi (2008 (4) SCC 720 that greater latitude is available to legislature in fiscal matters
v. T. Vijayalakshmi v. Town Planning Member, (2006) 8 SCC 502 that land use is governed by town planning law.
पीठ ने सरकार के इस स्टैंड को नकार दिया ।
पीठ ने कहा कि सरकार के पास ट्रिब्यूनल के फैसले को नकारने का कोई अधिकार नहीं हैं और वह ट्रिब्यूनल के फैसले के खिलाफ जाकर डवलपमेंट प्लान जारी नहीं कर सकती। इसके अलावा कि प्लान की प्रति को उच्च न्यायालय में किसी दूसरे मामले में जमा कराया गया है , इस दलील के आधार पर सरकार के कदम को न्यायोचित नहीं ठहराय जा सकता।
पीठ ने कहा कि ट्रिब्यूनल का फैसला अंतिम है और जब तक किसी उच्च कानूनी मंच से इस बावत कोई दखल नहीं दिया जा सकता यह अंतिम माना जाएगा। यह सरकार के क्षेत्राधिकार में नहीं है कि वह ट्रिब्यूनल के फैसले का नजरअंदाज कर दें। ऐसा करना कानून के शासन को तबाह कर देगा।
पीठ ने कहा कि सरकार की यह दलील की टीसीपी एक्ट ट्रिब्यूनल के क्षेत्राधिकार में नहीं हैं, इसमें कोई दम नहीं हैं।
16 नवंबर 2017 को यह शिमला शहर को लेकर अपने फैसले में यह कहा था ट्रिब्यूनल ने-:
Thus, we pass the following directions and order:
I. We hold and declare that the facts and circumstances of the present case, as afore-recorded, clearly
demonstrate failure on the part of the State Government, its instrumentalities and local authorities
to discharge their constitutional obligations under Article 48A, statutory duties under the Environment
(Protection) Act, 1986, under the TCP Act and Municipal byelaws. It is this failure that has exposed the Shimla
Planning Area to such vulnerability to natural and manmade disasters. In the event, if such unplanned and
indiscriminate development is permitted there will be irreparable loss and damage to the environment,
ecology and natural resources on the one hand and inevitable disaster on the other.
II. 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 as defined under the various Notifications issued
under the Interim Development Plan as well, by the State Government.
III. 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 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, restricted
to these areas, if any construction, particularly public utilities (the buildings like hospitals, schools and offices
of essential services but would definitely not include commercial, private builders and any such allied
buildings) are proposed to be constructed beyond two storeys plus attic floor then the plans for approval or
obtaining NOC shall 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 this judgement along with the
Supervisory Committee.
IV. 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. The
Competent Authority shall sanction the plans and/or approve the same only to that extent and no more;
under any circumstances such plans must not be beyond two storeys and an attic floor and only for
residential purpose.
V. There shall be no regularization of unauthorised constructions within the Core area and Green/Forest
areas which have been raised without obtaining any prior permission/sanction of plans in entirety. It shall
also include constructions in complete violation of the sanctioned plan or where additional floors have been
constructed in contradiction to the concept of deviation or variation, to constructed areas for which the plans
were sanctioned. In such cases, the authorities shall take action in accordance with law and direct
demolition of such property.
VI. The State of HP, its departments and authorities are hereby restrained from permitting cutting of
hills/forests without prior submission of application for sanctioning of plans for construction. If any person is
found to be damaging Forest/Green area and/or cutting of hills, without grant of permission of the concerned authorities and without construction plan being sanctioned, he/she would be liable to pay environmental compensation as may be determined by the concerned department but not less than Rs. 5 Lakhs for each violation. The compensation, if not paid, shall be recovered as land revenue by the State and will be utilized by the State for restorative purposes and/or for afforestation of the Shimla Planning Area.
VII. Wherever unauthorised structures, for which no plans were submitted for approval or NOC for development
and such areas falls beyond the Core and Green/Forest area the same shall not be regularised or compounded. However, where plans have been submitted and the construction work with deviation has been completed prior to this judgement and the authorities consider it appropriate to regularise such structure beyond the sanctioned plan, in that event the same shall not be compounded or regularised without payment of environmental compensation at the rate of Rs. 5,000/- per sq. ft. in case of exclusive self-occupied residential construction and Rs. 10,000/- per sq. ft. in commercial or residential-cum-commercial buildings.
The amount so received should be utilised for sustainable development and for providing of facilities
in the city of Shimla, as directed under this judgement.
VIII. We direct the State Government and/or its instrumentalities and more, particularly, the Town and
Country Planning Department to finalize the Development Plan within three months from the date of
pronouncement of this judgement without default. The Development Plan so finalized shall be notified in
accordance with law. While finalizing the development plan, the directions and precautions stated in this
judgement shall be duly considered by the concerned departments and the State of Himachal Pradesh.
IX. The Registrar or any other authority vested with the responsibility of registering documents of transfer or
division of land shall not do so except with the prior NOC from the Town and Country Planning Department,
in accordance with the provisions of the law afore referred. The Department of Science and Technology, Town and Country Planning, Municipal Corporation, Urban Development, Forest, Revenue and Registrar for documents shall depute their senior officers within a period of three weeks from today, who shall prepare Memorandum of Practice which shall be followed by all the departments in regard to cutting of hills, any activity in the forest areas, division and transfer of land, development activity providing of infrastructure and other facilities in the Shimla Planning Area. This memorandum shall provide due coordination and cooperation between the various wings of the State to ensure sustainable development of the entire Shimla Planning Area. This Memorandum will be approved by the Supervisory Committee appointed under this
judgement.
X. The State of Himachal Pradesh, its instrumentalities, departments and local authorities shall prepare an
Action Plan for providing appropriate infrastructure, water and sewerage facilities, roads, greenery, other
public amenities and retrofitting of existing structures (especially public utilities) particularly with the
earthquake resistance structures in the areas which have been indiscriminately developed and lacks such
facilities like Sanjauli and other congested areas of Shimla including Lower Bazar etc. The Action Plan shall
be prepared within a period of three months from the date of pronouncement of this judgement providing
retrofitting to public or private buildings against earthquake effect and be implemented in accordance
with the State Policy.
XI. No construction of any kind, i.e. residential, commercial, institutional or otherwise would be
permitted within three meters from the end of the road/national highways in the entire State of HP,
particularly, in Shimla Planning Area. We direct that all the concerned authorities shall duly enforce the valley
view regulation and direct the same.
XII. Within the existing Zoning policy, additional layers of slope, geology, soil type and load bearing capacity of
soil should be superimposed on different zones to regulate any construction or development works. The
height of constructions should be regulated by such safe bearing load capacity of the underlying rock
formations rather than uniformly following 18 mtr. of height requirement. The Interim Development Plan
permits 18 mtr. of height requirement, which again has no rational and is not backed by any study. Thus the
same will not be implemented till compliance with the other directions.
XIII. Presently slope of 45° for construction is uniformly applicable in all zones and areas irrespective of soil
and geology. This can create vulnerability during seismic events and soil saturation/soil liquefaction.
Slope in soft rocky areas with over burden soil should be reduced to 35° while retaining 45° for areas with
hard sub surface stratum. The concerned department shall ensure that no construction activity takes place
where the slope is more than 450/35° in any case, which should be prior to cutting of the hills.
XIV. Rain water harvesting should be a mandatory requirement for all the building plans. Even the old
buildings where such RWH structures are not present must be provided with RWH systems within three
months. This direction must be complied withparticularly in relation to public buildings, schools,
colleges, universities, hotels, hostels, etc.
XV. All the storm water available as surface run off in all the concretised areas like roads, lanes, platforms and
market places should be diverted in such a manner to ensure that such run off does not go in to over burden
or flow along hills and depressions, thereby creating over saturation and affecting soil and slope stability.
Options be evaluated for storage and use of such water after proper treatment/disinfection.
XVI. There should be no institutional construction in the Core area and the institutions located in the Core area which requires a further demand for space or facilities should be shifted to other district or to the areas falling under the jurisdiction of SADA.
XVII. We appoint the following Committee to be termed as ‘High Powered Expert Committee’, which shall be
responsible for carrying out the specific directions under this judgement and provide NOC or other
necessary permissions to the stakeholders, whether State or private parties. This Committee shall also
ensure that there is no further degradation of environment, ecology and natural resources of the
Shimla Planning Area. If anything comes to the notice of this Committee, they would be at liberty to move to the
Tribunal for appropriate directions. The High Powered Expert Committee shall consist of two components. First
would be the Supervisory Committee while the later would be Implementation Committee. The Members of
these committees shall be as follows:
I. SUPERVISORY COMMITTEE:
i) Secretary, Urban Development, State of Himachal Pradesh.
ii) Director, Wadia Institute of Himalayan Geology, Dehradun.
iii) Director, Town and Country Planning, Govt. of H.P. shall be the Member Secretary of the
Committee
iv) Professor from relevant field nominated by the Director, Punjab Engineering College,
Chandigarh.
v) Nominated officer from NDMA not below the rank or equivalent to the Joint Secretary or
above.
vi) Member Secretary, H.P. Pollution Control Board.
II. IMPLEMENTATION COMMITTEE:
Chairman: Director, Deptt. Town and Country Planning, Govt. of H.P.
MEMBERS:
i) State Town Planner, Govt. of H.P.
ii) Director, Department of Urban Development,Govt. of H.P.
iii) Municipal Commissioner, Shimla.
iv) Nominated officer from Wadia Institute of Himalayan Geology, Dehradun not below the rank or equivalent to Director in Govt. of India.
v) Nominated officer from NDMA not below the rank or equivalent to Director in Govt. Of India.
vi) State Geologist, Department of Industries, Govt. of H.P.
vii) Director, Department of Environment, Science &Technology, H.P.
viii) Architect in-Chief, H.P. PWD.
ix) Member Secretary, H.P. Pollution Control Board. The Supervisory Committee shall meet atleast once in
three months, while the Implementation Committee shall meet every month in the first week to perform the
functions and duties assigned to them under this judgement, without default.
XVIII. This High Powered Expert Committee shall carry out a survey of lifeline structures and identify those
structures that are vulnerable to damage due to seismic events and other natural hazards. Also it will identify
and delineate passages for providing emergency services, for medical assistance and relief works, so
that enough openings are created for ingress and egress of fire tenders and emergency medical vehicles/
ambulances.
XIX. This Committee shall also advise the State of HP for regulating traffic on all roads, declaring prohibited
zones for vehicular traffic, preventing and controlling pollution and for management of Municipal Solid Waste
in the Shimla Planning Area. The recommendation of this Committee should be carried out by the State
Government and all its departments as well as local authorities, without default and delay.
(275)
