SC reserves verdict on much debated NGT ruling over Shimla development
Shimla, Dec 16
Hearing concluded before the Supreme Court of India on the Special Leave Petition moved by the Himachal Pradesh Government against the National Green Tribunal 2017 judgement on December 12, and the court reserved the verdict.
The State of Himachal Pradesh, including Town and Country Planning, Ministry of Urban Development, and Municipal Corporation Shimla, had moved the Supreme Court in 2018 challenging the November 2017 NGT ruling to impose a ban on construction activities in Shimla Planning area and in Shimla MC, and quashing the draft plan of Shimla planning area presented by the state in 2022. The matter was listed before the division bench of Justice BR Gavai and Justice Arvind Kumar, who passed the two-page order on December 12. A copy of the order is with Himachal Scape.
The bench stated in the order that counsel for both parties argued the matter at length, and now the hearing has concluded, and judgment was reserved. The Supreme Court also instructed the parties to submit written submissions in the matter, if they have any, to be filed by December 15, 2023. The apex court is going for the Christmas and New Year break, likely to announce the verdict in the matter after January 1 next.
Highlights from arguments presented in court
Among the major highlights, the counsel for the respondent, Yoginder Mohan Sen Gupta, Sanjay Parik, submitted that the NGT judgment is a decree, and the Shimla Development Plan published and notified before the Supreme Court did not consider or include each fact directed by the NGT. The counsel for the respondents stated that under the guise of the Shimla Development Plan, they are permitting construction in the green, heritage, sinking, and core areas. However, it was not permitted and is in violation of NGT instructions. The respondent pleads that the Shimla Development plan is not in consonance with the directions given by NGT and the expert committee constituted by the tribunal. SDP is a recipe for disaster, and it would be doom for Shimla and the entire state of Himachal Pradesh if permitted as such.
The counsel for Yoginder Mohan Sen Gupta, Advocate Sanjay Parik, seeks to appoint another independent expert committee in the wake of recent deaths caused by landslides and rain in Shimla. The respondent demanded that those buildings which are raised up on the steep hills up to 70 degrees of angle are causing devastation every year in the rainy season. He said that before allowing any projects, the court should emphasize that an environmental impact assessment should be made compulsory for the town.
Rejecting the argument of the respondents, Advocate General Anup Rattan stated that the government has clearly included the recommendations of the expert committee constituted by the tribunal before notifying the Shimla Development Plan.
Also, during arguments, the State questioned the locus standi of complainants before the Supreme Court, alleging that those opposing the Shimla Development Plan before the NGT and apex court are not residents of Shimla and Himachal Pradesh. The counsel stated that addresses of most complainants belonged to Delhi and other places. The counsel said that no one from Himachal Pradesh moved before the NGT and SC, and their locus standi should be taken care of.
Replying to a query of Justice Gavai if the respondent raised an objection before the TCP before notifying SDP, advocate Sanjay Parikh stated that the State government did not accept their objections, stating that NGT directions are not binding on the state for finalizing the plan.
Sr. Advocate Vinay Kuthiala opposed the respondents stating that chapter 12 of SDP dealt with the NGT instructions and all the major instructions found mention in the draft. He said that the State has challenged the authority of NGT vis-a-vis TCP act, and NGT direction was not maintainable. Kuthiala argued that the law is well-settled with regards to Planning and construction activities that TCP is the main authority to finalize the draft plan of any planning area. Kuthiala also argued that the ambit of NGT is confined to seven acts and it couldn’t take suo moto cognizance of the draft plan and restrain the state from finalizing and publishing the Shimla Development Plan.
Anup Rattan stated that the state Interim Development Plan is as old as 1979 and due to the pendency of litigation on behalf of non-resident respondents, it got delayed in the court for more than twelve years.
Rattan stated that SDP was notified after obtaining approval from the Supreme court and followed due procedure before finalizing it on May 3, 2023, with the consent of this court.
He said the state government constituted a committee and took suggestions from various stakeholders, including local residents, planners, public representatives of MC, and various affected parties. Objections were also invited twice before finalizing the same.
 He said that the state government could not finalize SDP for a long time, and the Interim Development Plan has been amended 38 times to accommodate new planning areas and regulate construction, and now the new SDP 2041 should be implemented to regulate construction activities.
Rattan, arguing for the state, vehemently opposed the contention of the respondent that the state did not follow environmental norms. He said that the state government has followed the directions of NGT minutely before preparing the SDP and duly addressed each aspect raised by the NGT in its 2017 verdict.
Kuthiala said the learned bench while hearing and deciding the SLP must take this fact in mind that NGT did not appreciate the fact that Shimla town was raised during the last 100 years, and the people living here could not be deprived of many British era buildings which are still there having multiple stories. He said that all those buildings which are multi-storey between Mall road and Lower bazaar are built a hundred years ago and could not be replaced by two and a half stories, as directed by NGT in one part of the order.
The state contended that in those plots in the green belts having no trees from Ramchandra Chownk to Richmont and Jakhu and from IGMC to Lakkar Bazar should be allowed to construct one floor plus parking or attic. They said that the number of people has submitted their maps for approval, and the state is not in a position to pay compensation to plots for such green plot owners who bought plots many years ago.
The Advocate General also backed up the claim by adding that now there are 47 areas apart from the core or green areas which are also covered under SDP. The counsel for the state also said that the NGT should not interfere with the planning of the state. There are several judgments which emphasized that NGT would not interfere with the state planning, they cited. Adding that whatever NGT has done beyond the seven acts should be within the purview of the court only.
He said that the government has come to the top court to ensure that there is a development plan and no residents be rooted out of the town by enacting statutory provisions.
Advocate for former deputy mayor Tikender Singh Panwar Sr Counsel Surinder Nath supported the Shimla Development Plan; however, he contended that the SDP should be based upon a Geological study which is absent in the current one. Panwar said that he had filed an application for an objection in the SDP in 2022. They said that safety should be looked into before allowing SDP, and sustainable material should be allowed to be used for allowing construction in the vulnerable areas to save the lives of people. Adding that topographical zoning being missing in the plan, and there should be proper categorization of zones to divide it for industrial, commercial, and non-residential use.
Talking about it, the Law officer of TCP Mayank Manta confirmed that the state has submitted written submissions of its arguments on December 15 to support its SLP, and the court is likely to deliver the final verdict on the Shimla Development Plan and a stay on the construction activities.
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