Shimla development plan 2041 illegal and cannot be given effect: NGT

In a major set back to the Jai Ram Goverment and especially the Law and Urban Development Minister Suresh Bhardwaj, the National Green Tribunal declared Shimla Development Plan 2041 Illegal. The tribunal accepting an application moved against SDP held that it could not be given effect. A twenty paged order passed by the principal bench of NGT comprising chairperson Adarsh Kumar Goel, judicial member Sudhir Agarwal, Expert member Prof. A. Senthil Vel and  Dr. Afroz Ahmad on October 14, accepted the application filed by one Yogendra Mohan Sengupta.

The NGT said that applicant stated that SDP is contrary to the sustainable development principle and destructive of environment and public safety. Applicant quoting Expert Committee reports about Shimla town stated that SDP is in violation as NGT has already issued regulatory measures required to be adopted in terms of  number of floors, restrictions on constructions in core or green areas etc.

The NGT held that after consideration, are of the view that stand of the SDP by the State couldn’t be upheld once the Tribunal has adjudicated upon the matter. The tribunal added, that no further question remains for going into the merits as view already taken is final unless the same is interfered with by a legal forum.

NGT stated that state could not annul or ignore the order of NGT as there is no jurisdiction with the State to annul or ignore the order of the Tribunal. It held that any other view would negate the rule of law and defeat the/purpose of setting up this Tribunal.

NGT categorically stated that Jai Ram Thakur Government or  State’s view is not final in view of overriding the provisions of NGT Act by virtue of express provision under section 33. Slapping on the face of State government to go ahead with the SDP,  tribunal held that is a illegal and ill conceived effort to violate the binding directions of this Tribunal under Sec 15 of the NGT. It further goes on saying in the order that having the force of binding Court decree, subject to further orders only of Supreme Court. Under Section 33 of the said Act, the NGT Act has overriding effect over any other law in force. Principal Green bench held that violating such directions is a criminal punishable offence under Section 26 of the NGT Act and heads of concerned departments of the State are liable to be prosecuted for such offence under Sec 28 of the said Act.

NGT vide its order dated May 12, 2022, considered the contentions of the applicant against the validity of the draft of SDP permitting construction of more floors, new constructions in core area, constructions in green area, permitting development in sinking and sliding area in violation of order. NGT said that verdict passed is deemed to be decree of Court under Sec 25 of the NGT Act. It further imposed restriction on the state by this order passed on October 14, 2022  held that Judgements relied upon on behalf of the State do not advance its case since there is no conflicting

judgement of the High Court moreover NGT is not dealing with a fresh matter.

Showing complete disagreement with the SDP it further held “There is no occasion to revisit the view already taken which has to be treated as final as far as this Tribunal is concerned.” The NGT affirming observation made by it in its previous order passed on the another application by same applicant said in the operative part of order that in view of above, it is satisfied that the draft development plan, 2041, being in conflict with the judgement of this Tribunal dated November 16.11.2017 ( in O.A No. 121/2014) is illegal and could not be given effect and any action taken in violation of the said judgment could not be validated by the said plan and will remain illegal. Since 2017 NGT has banned all new construction in the core and green areas however it allowed massive construction for purposes of public utilities in core and green area .

Due to pending litigation and status quo in town, cases of breach of construction increased. Therefore the deadlock has left the state and planning authority in affix.

The Jai Ram Thakur Government which is going ahead to face Assembly polls in 26 days soon may have to face the burnt owing to fesh verdict passed by the NGT.