The High court of Himachal quashed the amendment made by the state government in the TCP act terming it as ultra vires the constitution of India. In an order by acting Chief Justice Sanjay Karol and Justice Tirlok Chauhan they observed that “Insertion of Section 30-B by the Amending Act is contrary to the object and purpose of the Principal Act, as also ultra vires the Constitution of India, as such we strike it down.”
The court made these observations in 3 petitions filed by Abhimanyu Rathore, Raghav Goel and Hitanshu Jistu. The court in its order observed that “we tried examining as to whether the Amending Act would be saved by adopting the principle of severability. Undoubtedly, to our mind, even that is not possible. Provision in its entirety, needs to be struck down for it is clearly ultra vires the Constitution and the laws of the land. As such, we hold it to be ultra vires the Constitution.” The court noted “rather than dealing sternly and demolishing unauthorized structures, defaulters are offered regularization on a platter. The economically affluent and perhaps close to the Executive, political or otherwise, who violated the laws with impunity, alone are going to be the beneficiaries.”
Observing failure of authorities for not being able to control the haphazered construction in planned manner the court further said “we notice that despite the mechanism for enforcement of the three enactments in place, repeatedly, rather notoriously, all the successive Governments, not only allowed rampant growth of concrete jungle, but relentlessly pursued the policy of appeasement, by promoting and propagating dishonesty, for regulating unauthorized possession (Encroachment Policy) or unauthorized construction (Retention Policy).
The learned court in its order also stated that, “It is public knowledge that during the pendency of the present petition, vide order dated 16.11.2017, passed in OA No.121 of 2014, titled as Yogendra Mohan Sengupta (supra), the National Green Tribunal, has issued certain directions qua the construction activity to be carried out within Shimla Town, under the Planning and the Corporation Acts. Though the said decision is not on record, but we have ourselves gone through the same. We clarify that we have not gone into the issues adjudicated therein, nor expressed any opinion with regard thereto, for before u the issue is limited and that being the constitutional validity of the Amending Act, which the Tribunal has not dealt with at all.”
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